As the two judges neither voted in favor of the appeal nor deviated from its denial, their view was entirely free. They simply used the case as a platform to repeat warnings about the threat to religion from official recognition of same-sex marriage.
Justice Barrett was not yet confirmed when judges Thomas and Alito issued this statement. I wonder if she would have signed it. It was pure conservatism of complaint with no effect other than to invite new cases that sought to overthrow Obergefell and to strike fear in some sections of the LGBTQ community that it could happen. It does not. But I’m sure the pressure on the pitch will only grow.
There is no neutral reason: the Supreme Court has become a prize in a war over how far the country will go to privilege religious rights over other rights, including the right not to be discriminated against. A case the court heard last month Fulton v. City of Philadelphia, raises the question of whether a Catholic social agency under contract with the city to place children in nursing homes may refuse to consider same-sex couples as foster parents despite the city’s non-discrimination legislation.
For religious followers pushing for such claims, equal treatment is no longer sufficient. Special treatment is the demand. That’s clear in another Covid-related case that reached the Supreme Court this week. In mid-November, Gov. Andrew Beshear of Kentucky issued a temporary order preventing personal instruction in all public and private schools. One religious school, the Danville Christian Academy, immediately won an injunction from a federal district judge.
A panel of three judges from the American Court of Appeal for the Sixth Circuit was ordered last weekend. The court noted that because the ruling applied to both religious and secular schools, it was “neutral and of general application”, keywords that, according to a 1990 Supreme Court ruling, Employment Department v. Smith, to exclude a claim under the first amendment free clause on a special religious exemption.
Claiming that “it is called by God to give his students personal instruction”, the school has gone to Justice Kavanaugh, who has oversight of the sixth circuit and asks him to leave the stay of the stay. The 35-page map almost exclusively skips the fact that public schools are under the same austerity and asks instead: “Why can a 12-year-old go to the cinema with two dozen other people but she can not see” ever told ‘with a small group in the bible class? “Justice Kavanaugh has asked Governor Beshear to respond by Friday afternoon.
The Sixth Circuit panel’s unanimous decision against the school was somewhat unusual because it was issued by a Democrat-appointed judge, Karen Nelson Moore, and two judges appointed by President George W. Bush, John Rogers and Helene White. Statistics recently compiled by Zalman Rothschild, a fellow at the Stanford Constitutional Law Center, show a surprisingly biased gap in how federal judges have approached cases involving religious objections to the government’s imposed restrictions related to Covid-19.