The Archdiocese of Milwaukee has weighed in on a U.S. Supreme Court case out of Philadelphia over foster care by same-sex couples.
A friend-of-the-court brief filed by Wisconsin Institute for Law & Liberty on behalf of the archdiocese and Archbishop Jerome Listecki characterizes the case as “among the most consequential cases this Court has ever considered.”
It supports the overturning of a 1990 Supreme Court ruling, Employment Division v. Smith, that laws that are valid, neutral and generally applicable can’t be challenged in court because they offend someone’s sincere religious beliefs.
In a statement, Rick Esenberg, president and general counsel of WILL, said, “Smith has made religious freedom a second-class right. The Supreme Court has an historic opportunity to correct this.”
In the current case, Philadelphia stopped referring foster care cases to Catholic Social Services after learning the agency would not license any same-sex couples as foster parents. CSS sued.
In 2018, a district court, appellate court and the U.S. Supreme Court all denied the agency’s petitions for an injunction. But in February, the more-conservative Supreme Court granted its petition for review there.
The Listecki brief urges the court to overrule Smith and adopt a “strict scrutiny” standard for all laws that might impinge on religious freedom. To survive strict scrutiny analysis, a law must advance a compelling government interest in a narrowly-tailored way.
It suggests that the worst-case scenarios the court feared in the Smith case have not come to pass in Wisconsin, which the brief says does apply the higher standard of review in religious rights cases.
In the 1990 Smith decision, the court feared “anarchy” might result if every conceivable kind of civic obligation were opened to exemptions based on religion.
That’s not likely, Listecki argues. “Wisconsin courts, like courts in many other jurisdictions, have quite comfortably resolved what conscience-exemption claims have been brought.”
The brief summarizes many Wisconsin Supreme Court rulings involving claimed burdens on religion by several Amish plaintiffs.
The U.S. Supreme Court has not yet scheduled oral arguments in the Fulton v. City of Philadelphia case.
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