In Washington v. Davis the Supreme Court demanded proof of discriminatory intent in a challenge to a civil service type test for the Washington, D.C. police force. This kind of challenge - focused on intent rather than results - has ruled since, including in religious discrimination cases. In Employment Division v Smith the court found no flaw in a statute barring use of peyote in a Native American religious ceremony, despite the fact that another intoxicant - wine - is a central element in both Christian and Jewish rituals. The peyote ban was considered a law of general application, while the traditional glass of Passover wine shared by children does not run afoul of the laws limiting legal age for serving alcohol because, well, that is different.
That principle - the intent requirement - appears to be a dead letter in religious exercise cases. The rulings of the Supreme Court in the injunctive relief cases involving the Brooklyn Roman Catholic diocese, South Bay United Pentecostal, and other congregations all seem to point to the idea that regardless of intent any disparate treatment of religious exercise is subject to strict - almost invariably fatal - scrutiny. But in those emergent relief cases - part of the `shadow docket' - no fully developed `opinion of the court' has been offered. We have shards of observations, bits and pieces, but no full doctrinal development.
The final axe is likely to fall in Fulton v. Philadelphia. It seems likely that the Court is poised to compel Philadelphia to exempt Catholic Charities from the non-discrimination requirements of a City law which prohibits discrimination on the basis of sexual orientation. That sort of general requirement - opposed by conservatives who see homsexual bonds as contrary to their "faith" - appears to be poised to fall.
Eric Segall discusses the issues at Dorf on Law.
by Eric Segall (Georgia State)
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