Right call, right reason (but punts the issue, really)

The Supreme Court today took the surprising tack of deciding a religious freedom case (Fulton v. City of Philadelphia) on the basis of a statutory provision I’d never heard mentioned in discussions of the case (and I was paying moderately close attention).

The majority opinion by Chief Justice Roberts, joined by Justices Breyer, Sotomayor, Kagan, Kavanaugh, and Barrett: When a legal rule allows for "entirely discretionary exceptions" (e.g., that a foster care evaluation provider "shall not reject … prospective foster or adoptive parents … based upon … their … sexual orientation … unless an exception is granted by the Commissioner or the Commissioner’s designee, in his/her sole discretion"), the government must generally provide such exceptions for religious objectors as well.

I’m not surprised at the outcome. I am surprised (and disappointed) that I hadn’t heard about this discretionary exemption clause in the law. It was an obvious way, it seems to me, to avoid having to overturn the 30-year-old ‌Employment Division v. Smith precedent — even though no exemptions have been extended to anyone.

But Justice Alito has a point, too:

[The majority] decision might as well be written on the dissolving paper sold in magic shops. The City has been adamant about pressuring CSS to give in, and if the City wants to get around today’s decision, it can simply eliminate the never-used exemption power. If it does that, then, voilà, today’s decision will vanish—and the parties will be back where they started. The City will claim that it is protected by Smith; CSS will argue that Smith should be overruled; the lower courts, bound by Smith, will reject that argument; and CSS will file a new petition in this Court challenging Smith. What is the point of going around in this circle?

(Both block-quotes from Eugene Volokh, with emphasis added.)


Paul Kingsnorth on the environmental movement (which he left):

What, exactly, was he leaving? A movement that had transformed itself into, as he memorably put it, “the catalytic converter on the silver SUV of the global economy.” … To him, this next-gen environmentalism was simply “business-as-usual: the expansive, colonizing, progressive human narrative, shorn only of carbon.”

Eric Miller, Out Walking (Current)


Glenn Greenwald, The Enduring False Narrative About the PULSE Massacre Shows the Power of Media Propaganda. I put this in the category of "Whenever Mrs. Kissel breaks wind we beat the dog.": Gay person murdered = homophobe murderer.

It’s ever so much easier than admitting that our endless wars of choice piss some people off around the world — especially if one is a Senator, but almost as much if one is a journalistic lapdog to the Beltway crowd.


Hudge and Gudge, or the governing class generally, will never fail for lack of some modern phrase to cover their ancient predominance. The great lords will refuse the English peasant his three acres and a cow on advanced grounds, if they cannot refuse it longer on reactionary grounds. They will deny him the three acres on grounds of State Ownership. They will forbid him the cow on grounds of humanitarianism.

G.K. Chesterton, What’s Wrong with the World?


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