The “Great Compromise”: A Deal with the Devil

Katie Short

On November 4, 2020, the Supreme Court heard arguments in Fulton v. Philadelphia, in which foster parents and Catholic Social Services of Philadelphia (CSS) challenged the city’s decision to cancel CSS’s contract and revoke the charitable agency’s ability to certify foster parents. The city took the action in response to learning of CSS’s religious objection to certifying same-sex couples as foster parents. No same-sex couple had ever asked to use CSS’s certification services, and there are 29 other agencies in Philadelphia that are willing to help same-sex couples attain certification, but the city nonetheless canceled the contract in the name of combating discrimination. In 2019, the Third Circuit affirmed a lower court order dismissing the challenge.

Life Legal filed an amicus brief in the case, taking aim at two aspects of the lower court’s ruling of concern to pro-lifers.

The first was the assumption that local government can monopolize a broad area of human activity, transforming it into a “public service” for which it then gets to set the rules for all participants. Some decades ago, the government of Philadelphia moved into a field (care of neglected children) in which the church had been serving for over two hundred years. The government eventually attained a monopoly position on child welfare services, relegating private agencies, including religiously-based agencies, to the position of mere contractors that must follow all city dictates.

With the government’s expansion into the area of health care, it is easy to see how the same scenario could play out there, with the government claiming for example, that all hospitals are performing a “public service” for which the government sets the rules, and one of those rules is that all hospitals must provide abortions.

Both newly-seated Justice Barrett and Justice Alito posed that very question to the attorneys opposing CSS. One responded that it was “really hard to imagine exactly how that would work,” but Alito shot back, “I don’t think it’s hard to imagine at all.” Ultimately, the attorney ran out the clock without explaining how such a scenario would differ from Philadelphia requiring CSS to betray its religious principles as a condition of continuing its work in the area of child welfare.

The second area of concern for pro-lifers is the Third Circuit’s declaration that the government has a compelling interest in “eliminating discrimination,” without making any distinction as to the type of “discrimination” at issue. Supreme Court precedents have identified a compelling interest (the highest level of government interest) in combating racial discrimination, but have never attached such significance to any other type of alleged discrimination. As Life Legal’s amicus brief argued:

The [Third Circuit]’s failure to distinguish types of “discrimination” put the full weight of our nation’s commitment to atone for centuries of maltreatment of racial minorities at the service of whatever newly-minted victim class the state decides to favor this decade.

This deliberate weaponizing of “discrimination” is a threat to pro-lifers, whose defense of human life is frequently mischaracterized as sexist by pro-aborts and their allies in the media. Should pro-abortion groups succeed in equating opposition to abortion with discrimination against women, the weight of anti-discrimination laws and policies can be used to intimidate pro-lifers into silence, under threat of losing their jobs, contracts, professional licenses, etc.

Already, pro-abortion groups in the District of Columbia, New York State, and other locales have pushed legislation to prohibit employers from “discriminating” against employees, because of their or their dependents’ “reproductive health care decisions.” Simply as a matter of logic, treating people differently because of their “decisions” (and actions) is categorically unlike discrimination based on an immutable characteristics such as race or ethnicity. The Supreme Court needs to clarify that, at least as to federal constitutional law, the “compelling interest” in eradicating discrimination does not extend to any and every category that a state or city chooses to create.

The Supreme Court oral argument revealed another link between the Fulton case and pro-life issues. Justice Kavanaugh used his time1 with the attorney for Philadelphia to express, as he put it, “a bigger-picture thought”:

It seems like this case requires us to think about the balance between two very important rights recognized by this Court, the religious exercise and belief right, obviously, in the First Amendment, and the same-sex marriage right, as recognized in Obergefell. . . .

And it seems like we and governments should be looking, where possible, for win-win answers, recognizing that neither side is going to win completely on these issues given the First Amendment on the one hand and given Obergefell on the other. . . .

[W]e need to find a balance that also respects religious beliefs. That was the promise explicitly written by the Court in Obergefell and in Masterpiece [Cake Shop], explicitly promised that respect for religious beliefs.

And what I fear here is that the absolutist and extreme position that you’re articulating would require us to go back on the promise of respect for religious believers.

In that plaintive statement, Justice Kavanaugh seemed to be channeling Justice Kennedy, for whom he clerked and whose seat on the court he now fills. Almost 30 years ago, Justice Kennedy believed that the Court had managed to broker a final compromise on an issue of great moral significance, only to learn, when it was too late, that he was the only justice thinking in those terms.

In Planned Parenthood v. Casey (1992), Kennedy, along with Justices O’Connor and Souter, authored a joint opinion that affirmed Roe v. Wade and created the “undue burden” standard. As Justice Kennedy later described it,

In [Casey], the Court reaffirmed its prior holding that the Constitution protects a woman’s right to terminate her pregnancy in its early stages. The majority opinion in Casey considered the woman’s liberty interest and principles of stare decisis, but took care to recognize the gravity of the personal decision: “[Abortion] is an act fraught with consequences for others: for the woman who must live with the implications of her decision; for the persons who perform and assist in the procedure; for the spouse, family, and society which must confront the knowledge that these procedures exist, procedures some deem nothing short of an act of violence against innocent human life; and, depending on one’s beliefs, for the life or potential life that is aborted.”

Eight years later, Justice Kennedy seemed genuinely shocked when, in Hill v. Colorado, the justices who voted to affirm Roe in Casey also voted to uphold Colorado’s bubble zone statute, which criminalized approaching women outside abortion clinics without their consent. He acknowledged that, in Casey, the Court had made it virtually impossible to legislate against abortion. Thus, “[a]bsent the ability to ask the government to intervene, citizens who oppose abortion must seek to convince their fellow citizens of the moral imperative of their cause.” But, by upholding Colorado’s bubble zone law,

“[t]he Court now strikes at the heart of the reasoned, careful balance I had believed was the basis for the opinion in Casey. The vital principle of the opinion was that in defined instances the woman’s decision whether to abort her child was in its essence a moral one, a choice the State could not dictate. Foreclosed from using the machinery of government to ban abortions in early term, those who oppose it are remitted to debate the issue in its moral dimensions. In a cruel way, the Court today turns its back on that balance. It in effect tells us the moral debate is not so important after all and can be conducted just as well through a bullhorn from an 8-foot distance as it can through a peaceful, face-to-face exchange of a leaflet.”

One has to wonder how Justice Kennedy got the idea that his fellow justices, particularly O’Connor and Souter, had agreed to that bargain. They signed onto an opinion stating their intent to “call the contending sides of a national controversy to end their national division by accepting a common mandate rooted in the Constitution,” but nowhere did they express Kennedy’s view that this meant that the private sphere of persuasion against abortion was off-limits for government regulation and suppression.

Even if they had, why did Justice Kennedy think that the Supreme Court has the authority to fashion such a Great Compromise on the abortion issue? “The Imperial Judiciary lives,” remarked Justice Scalia in dissent, and quoted Abraham Lincoln’s First Inaugural Address: “The candid citizen must confess that if the policy of the Government upon vital questions affecting the whole people is to be irrevocably fixed by decisions of the Supreme Court, . . . the people will have ceased to be their own rulers, having to that extent practically resigned their Government into the hands of that eminent tribunal.”

If Justice Kavanaugh was correct in his remarks during the Fulton argument, then Justice Kennedy entered into this same sort of unilateral compact when casting the deciding vote and writing the majority opinion in Obergefell v. Hodges, the 2015 case finding a constitutional right to same-sex marriage. He stripped states of their ability to define marriage as being between a man and a woman, but thought he had a deal—a “promise”—that the religious beliefs of individual citizens and private entities would be respected.

But the only legally binding precedent from the Obergefell decision is the holding that states cannot prohibit same-sex marriage; the extras about religious freedom are dicta, which the justices, lower courts, liberal states, cities, universities, medical schools, credentialing agencies, etc. are free to disregard. And clearly they are intent on doing so.

Several of the other justices, including Justice Breyer, expressed similar discontent with Philadelphia unnecessarily creating this clash between the free exercise of religion—a right explicitly found in the Constitution—and judicially-created rights against various types of “discrimination.” One can only hope that the justices have learned from Justice Kennedy’s mistakes that there is no dealing with the Devil.

1 Since last spring, Supreme Court arguments have been held remotely. Chief Justice Roberts’ practice is to allow each side’s attorney to make a brief opening statement, and then call the roll of the justices, allowing each about two minutes to ask questions of the attorney.

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