Bacon's Rebellion

Democracy Thrives in Sunlight

The Dems’ Conscience-Clause Dilemma

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by

James A. Bacon
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by Emilio Jaksetic

Virginia’s statutory adoption   conscience clause prohibits any requirement that forces private child-placing agencies to violate their religious or moral convictions when participating in the placement of a child for foster care or adoption. Virginia Democrats have advocated repeal or nullification of the clause on the grounds that the clause permits unequal, discriminatory treatment.

In February 2021, the House of Delegates passed HB 1932 to repeal the conscience clause despite objections from Republicans and Catholic adoption agencies. (See the article in The Virginia Star.) The bill was referred to a Senate Committee on Rehabilitation and Social Services, where it died. (View the legislative history.)

The list of Virginia Democrats who support repeal or nullification of the adoption conscience clause is extensive.

I have not found any recent statements by Senators Mark Warner and Tim Kaine about their positions on current H.R. 5, the Equality Act.  However, both have supported an earlier version of such legislation. It seems reasonable to infer they would support the current H.R. 5 if it advances in the Senate.

The support by Virginia Democrats for repeal or nullification of Virginia’s adoption conscience clause faces a constitutional obstacle posed by the Supreme Court’s recent decision in Fulton v. City of Philadelphia (June 17, 2021).

In the Fulton case, the Supreme Court reviewed the decision of the City of Philadelphia to refuse to refer children to Catholic Social Services (a foster care agency) because CSS would not certify same-sex couples to be foster parents due to CSS’s religious beliefs about marriage. In support of its refusal to deal with CSS, the City of Philadelphia cited the non-discrimination provisions of City contracts and a Fair Practices Ordinance. The Supreme Court held that the City of Philadelphia’s action violated the Free Exercise Clause of the First Amendment of the U.S. Constitution. Although there were three separate concurring opinions, no Supreme Court Justice dissented from conclusion that the City of Philadelphia violated the Free Exercise Clause of the First Amendment by demanding that CSS certify same-sex couples as foster parents despite its religious beliefs about marriage.

Significantly, the Supreme Court decision in the Fulton case did not involve a claim of religious liberty under a conscience clause statute. The Supreme Court upheld a claim of religious liberty under the First Amendment of the U.S. Constitution. So, even if Virginia Democrats continue to pursue — and achieve — repeal or nullification of Virginia’s adoption conscience clause, private child-placing agencies operating in Virginia still would be able to invoke the First Amendment to protect themselves from state-imposed requirements that would force them to violate or act contrary to their religious convictions and beliefs.

Virginia Democrats face a dilemma:

Should they continue to pursue repeal or nullification of Virginia’s adoption conscience clause despite the Supreme Court decision in the Fulton case (which recognizes the  exercise of religious conscience even without a statutory basis)?

or…

Should they reconsider their opposition to Virginia’s adoption conscience clause in light of the constitutional principles enunciated by the Supreme Court in the Fulton case?

Which course of action Virginia Democrats take will be very revealing about their position on religious liberty under the U.S. Constitution, as well as their respect for constitutional principles. Virginians should ask Democrats running for office this November to state clearly and unequivocally their views about Virginia’s adoption conscience clause in light of the Fulton decision.

Emilio Jaksetic, a retired lawyer, is a Republican in Fairfax County.

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38 responses to “The Dems’ Conscience-Clause Dilemma”

  1. vicnicholls Avatar
    vicnicholls

    I would make sure every Christian, Jew, Muslim, Buddhist, Hindu, Sikh, and others, knows this. Every word of it.

  2. Nancy Naive Avatar
    Nancy Naive

    Does this mean VMI will boot women and be all male again?

  3. Dick Hall-Sizemore Avatar
    Dick Hall-Sizemore

    This post present a false choice, based on a shallow reading of the Fulton decision.

    The Supreme Court did indeed rule that Philadelphia unconstitutionally discriminated against the Catholic child-placing agency, but the decision turned on very narrow grounds. As one well-respected commentator on the Supreme Court noted, “While the justices unanimously agreed with CSS and the foster parents that the city’s action was unconstitutional, a six-justice majority left intact the Supreme Court’s 1990 decision in Employment Division v. Smith, which held that government actions usually do not violate the free exercise clause as long as they are neutral and apply to everyone.”

    The Court ruled that, because Philadelphia’s process included a provision for exemptions from the nondiscrimination requirement that the city’s commissioner had sole discretion to grant, it was not “generally applicable” and was, therefore, unconstitutional.

    Source: https://www.scotusblog.com/2021/06/court-holds-that-citys-refusal-to-make-referrals-to-faith-based-agency-violates-constitution/

    Therefore, if the General Assembly were to repeal the conscience clause statute, and, if the state then were to adopt a policy prohibiting discrimination applicable to every agency, with no exemptions allowed, the state would not be in violation of the Fulton decision.

    1. LarrytheG Avatar
      LarrytheG

      Exactly. It was a very narrow reading that folks are interpreting wrongly. Just follow what will happen longer term as other religious groups start asserting their beliefs and tenets that even conflict with each other.

      This is exactly WHY the founding fathers sought to keep govt separate from religion but the ignorati today are so bound up over the partisan divide, they seem willing to just dive right into it.

      You are so much more patient and articulate than I and a credit to BR and I hope you continue to offer reason and logic to the dialogue here.

    2. tmtfairfax Avatar
      tmtfairfax

      And if a state passes a law prohibiting the wearing of a niqab? Outside pandemic situations, personal illness and Halloween, the wearing of masks is generally illegal. Should there an exception for wearing the niqab? If so, justify it with your interpretation of constitutional law vis a vis religious beliefs, gay marriage and personal services.

      1. LarrytheG Avatar
        LarrytheG

        I’m thinking more in terms of govt money funding a service provided by a religious organization.

        How could ANY religious organization meet the test for non-discrimination for receiving funds to provide a service, like schools or medical or food or charity?

        I don’t think the govt cares what they wear but whether they would deny service based on their religious beliefs.

        1. tmtfairfax Avatar
          tmtfairfax

          Larry, your little boxes don’t work. The issue is not whether a Muslim or Lutheran religious group getting money to run a soup kitchen could restrict feeding to mosque or church members. They don’t. The issue is whether the feds could make a Muslim- or Lutheran-operated hospital offer gender reassignment surgery on 12 year olds as a condition of receiving federal funds, assuming the operators were opposed to such surgery.

          1. LarrytheG Avatar
            LarrytheG

            TMT – whatever the LAWS are of the country that apply to everyone in the country.

            If a Lutheran hospital refused to admit Muslims why would that be any different than them refusing any other legal requirements of Federal law?

            If a non-religious hospital receives Federal funding and the law says such procedures are legal – how can the hospital refuse if in doing so it loses their funding?

            why wouldn’t it work that way for ANY entity that receives Federal Funds. Does the law require conformity with Federal laws as a requirement of receiving that funding?

          2. tmtfairfax Avatar
            tmtfairfax

            Larry, you are still dodging the key issue. It’s not admitting people of different beliefs to a hospital. It’s about forcing people to participate in activities that violate the basic tenets of their religious beliefs based on the First Amendment. And the Constitution takes precedence over statutes.

            Suppose a state had a law where people not only had to serve on juries but also to witness executions. I maintain that a person whose religious beliefs opposed capital punishment would have a constitutional right to refuse to participate. A physician or medical student who had religious beliefs against abortion would have the right to refuse to conduct one. A wedding planner who had religious beliefs against gay marriage would have a right not to be required to plan a gay wedding.

            California has a state law where it cremates indigent people. I maintain that if a relative could demonstrate the deceased had a religious objection against cremation, the relative would have a right to stop the cremation.

          3. LarrytheG Avatar
            LarrytheG

            TMT – no. I’m talking about the existing Constitutional laws on discrimination and who has to follow them and who does not.

            I’m not “supposing” this. It is the fact and the reality.

            You may disagree with the law. I might. But if it is the law then we need to follow it or face the consequences for not.

            If the court decides that a religious exception does exist on following the law in one case, what is to stop others from also seeking other exemptions to other laws on the same basis?

            So, we’d have a country where a barber could refuse to cut the hair of someone based on his religious beliefs. A doctor could refuse to treat a Muslim because of his/her religious beliefs. A restaurant could refuse to serve Jews over the owners religious beliefs.

            Correct?

            You want to talk about instances where YOU see justification for not following the law.

            I’m asking if a whole bunch of folks refuse to follow a bunch of laws based on their religion – won’t we end up with a hugely divided society where you can’t just go to any store or any doctor because they may not serve you.

            All public accommodations would work that way and you know there will be a religion that does not serve, blacks or Muslims or Hispanics, Asians, etc.

            What keeps that from happening once you start giving exemptions based on Religious beliefs?

          4. tmtfairfax Avatar
            tmtfairfax

            Again, Larry, you are ignoring the First Amendment’s protection for freedom of religion. Could a pork producing state enact a law that required everyone in the state to prove he/she consumed pork? Or would Jews and Muslims be exempt? You cannot make a believing Baptist doctor perform an abortion. The issue is personal performance not public accommodation. You keep mixing the two together.

          5. LarrytheG Avatar
            LarrytheG

            It’s freedom FROM Religion, TMT.

            It’s freedom from Religion imposing itself on you.

            Beyond that , there is the law – which may not be what you agree with – but we follow that law until/unless it gets changed.

            And the law says that if you offer services to the public, you cannot discriminate for any reason, including religion.

            I’m not confusing it. THe law is clear on that and the SCOTUS is pretty clear on it.

            You can’t make a Baptist preacher perform an abortion – true.

            re: personal performance versus public accommodation.

            What’s the law say on public accommodation? Can you discriminate because you disagree with the law?

            SCOTUS is trying to thread a needle here and I think there are a very narrow path and may well find themselves in conflict with the Constitution.

            If “personal performance” means that a clerk in a Walmart can refuse to ring up condoms or birth control pills at the check out,what then?

            I don’t see a practical, workable solution from you guys. Just mayhem. Even SCOTUS is not going to go for that.

            In your world, a Muslim doctor can refuse to treat a Jew – and vice versa, no?

      2. Dick Hall-Sizemore Avatar
        Dick Hall-Sizemore

        The issue in the Fulton case was referring kids for foster care. It had nothing to do with funding or requiring any medical provider to do anything that violated his religious principles. The ruling in Employment Services. that government actions that are neutral and apply to everyone do not violate free expression, still stands.

        As for prohibiting the wearing of a niqab, the government would need to demonstrate a “compelling interest”. I tend to think that the government could not meet that test and, thus, any prohibition of wearing a niqab would be an unconstitutional infringement of free expression of religion.

        1. LarrytheG Avatar
          LarrytheG

          well, foster care, funded by the government, no?

          If a NOGO did such services but did not take govt money to do it – purely their own money, could they function that way?

          1. Dick Hall-Sizemore Avatar
            Dick Hall-Sizemore

            In Virginia, any private agency that engages in placing children in foster care or for adoption must be licensed by the state. If the “conscience clause” statute is repealed, theoretically the state could adopt a regulation denying a license to any organization that discriminated against same sex couples, regardless of whether public funding was involved.

          2. LarrytheG Avatar
            LarrytheG

            and that’s the issue, no?

            I would think in any case where the govt, Fed or state contracts with an agency to provide services, a requirement would be for that agency to agree to the laws on discrimination.

    3. emjak Avatar
      emjak

      Predicting what the Justices of the Supreme Court will do in a future case is fraught with perils and pitfalls. It’s like trying to predict the future by reading the entrails of a sacrificial goat.

      I would note the following: In the Fulton case, three Justices (Thomas, Alito, Gorsuch) indicated that they probably would overrule or limit the Smith decision. Justice Kavanaugh and Justice Barrett stated in the first paragraph of their concurring opinion (which Justice Breyer declined to join) the following significant language:

      “While history looms large in this debate, I find the historical record more silent than supportive on the question whether the founding generation understood the First Amendment to require religious exemptions from generally applicable law in at least some circumstances. In my view, the textual and structural arguments against Smith are more compelling. As a matter of text and structure, it is difficult to see why the Free Exercise Clause — lone among the First Amendment freedoms — offers nothing more than protection from discrimination.”

      Although Justices Kavanaugh and Barrett declined to overrule Smith in this case and noted reservations about the parameters of whatever test or standard would replace the Smith decision, their words signal that the Smith decision is on “life support” and may not survive in a future case.

      My prediction: If Virginia or any other State passes categorical laws that clearly burden the exercise of core religious beliefs and make no effort to reasonably accommodate the free exercise of religion, then it is likely that the Supreme Court will revisit the Smith decision and probably overrule or limit it.

      1. LarrytheG Avatar
        LarrytheG

        I’m looking at the National Laws on discrimination and how they apply to Federal grants to NOGO groups to provide services.

        Can the NOGO group take the money – and violate the National laws on discrimination?

        And if they can – for anything and everything, Katy-bar-the-door so whether the group is Islam or Jewish or Scientology or Buddist – each can discriminate based on their beliefs?

        If that’s what the SCOTUS will eventually agree to ?

        THen won’t others claim they too can not follow the laws on discrimination?

        1. emjak Avatar
          emjak

          There are multiple Supreme Court decisions on the Free Exercise Clause of the First Amendment. I doubt anyone can give a simple definitive answer on how the Supreme Court will decide future cases involving claims concerning religious freedom. Even though I believe there are 5 Justices of the Supreme Court likely to eventually vote to overrule or limit the Smith decision, I will not dare to predict the parameters of the legal standard a majority of the Supreme Court might decide to replace the Smith decision.

        2. tmtfairfax Avatar
          tmtfairfax

          It depends on the facts. The Colorado cakebaker has always said he would sell any pre-decorated cake in his store to anyone. He has sold them to gay people and to gay people for weddings. What he won’t do is work as the pastry chef for gay weddings because he believes they are wrong. It’s the personal involvement that is the constitutional issue.

          If a person can be compelled to be a personal pastry chef or a personal wedding planner, it’s a short step before the Catholic priest or Baptist minister can be compelled to conduct the ceremony. Could a minister be compelled to witness an execution of a prisoner if her sect did not believe in the death penalty? Why do we allow churches to provide sanctuary to persons subject to deportation orders?

          1. LarrytheG Avatar
            LarrytheG

            so… any store should be able to refuse to sell to anyone who they disagree with on moral and religious (or even other) issues?

            That’s the solution?

            So, for instance, people that don’t like Muslims could refuse to sell to them.

            right?

          2. Dick Hall-Sizemore Avatar
            Dick Hall-Sizemore

            Being a minister is a lot different than being in a commercial business open to the public.

            Suppose that a mixed race couple, such as my daughter and her husband, asked that baker to prepare a cake especially for their wedding. Could the baker refuse because something in his religion says that people of different races should not be married?

            To answer your question, no one should be compelled to witness an execution if he has a moral objection to execution. The state could not demonstrate a “compelling interest” in requiring a specific individual to witness an execution.

      2. Dick Hall-Sizemore Avatar
        Dick Hall-Sizemore

        I agree with you that predicting future Supreme Court decisions is a fool’s errand. That is why I limited my remarks to the current decision.

        1. LarrytheG Avatar
          LarrytheG

          I agree. But if you look at the longer term implications of rulings – they have to be decided in ways that future cases coming to them don’t result in flip-flops on their decisions. Which HAS happened, SCOTUS HAS made decisions they later had to backtrack on because, one might presume, their initial decision was flawed if indeed, it was overturned later.

          So when they make a decision right now – there are implications about the next similar case in the future.

          You can’t have the SCOTUS contradicting itself very much on issues or else they WILL be perceived as more political and less judicial.

  4. Stephen Haner Avatar
    Stephen Haner

    The answer to your question is the second one: In light of the unanimous (!) Fulton decision, the Democrats should abandon this continued obeisance to those who would force their minority lifestyle choices on everybody. Next year’s bill should get a grey cover, an indication that is known to be unconstitutional. So many incredibly stupid votes, so little time and attention span with the voters…..

    Of course the patron Mr. Levine is no longer with us…That helps.

  5. LarrytheG Avatar
    LarrytheG

    This boils down to – if the government is funding something, a service, – can that money go to groups that actually do discriminate and call it “religious beliefs”.

    Seems like as a condition of grant funding, the receiving group has to certify that they will follow the laws of the US including those that apply to discrimination.

    This could end badly when other extreme groups claim “religious” beliefs in the way they do business, like they would refuse to serve folks in other religions or ethnic groups.

    1. WayneS Avatar
      WayneS

      At this point Fulton v. City of Philadelphia is the law of the land.

      1. Stephen Haner Avatar
        Stephen Haner

        Only Larry would disagree with Kagan, Sotomayor and Breyer if their decision contradicts Virginia’s Perfect New Blue Majority…..The court understood that the agencies were being forced to submit to discrimination, Larry.

        1. LarrytheG Avatar
          LarrytheG

          No. I just ask if you get different religious groups involved – that don’t agree with each other on some issues – but you don’t touch them because of the religious issue – aren’t we going to essentially approved different groups using different types of discrimination even in conflict with each other?

          That does not seem to be tenable longer term. no?

        2. LarrytheG Avatar
          LarrytheG

          Ya’ll are so messed up with partisanship, Steve, you don’t even see the obvious practical issue with various religious organizations denying services to those that do not agree with their beliefs.

          How can that work longer term if many religious organizations use Federal funds to provide services and each one uses differing criteria when the Government is saying you can’t discriminate – period?

        3. Dick Hall-Sizemore Avatar
          Dick Hall-Sizemore

          See my comment below for what the court actually said.

      2. LarrytheG Avatar
        LarrytheG

        For that narrow case, yes. But longer term, there is going to be an obvious problem.

  6. Dick Hall-Sizemore Avatar
    Dick Hall-Sizemore

    Legal arguments aside, this whole argument is so short-sighted. Good foster and adoptive parents are in short supply. Both groups–religious organizations who object to homosexuality and legislators who want to protect the rights of homosexuals–are putting their ideologies ahead of the needs of vulnerable children.

    1. LarrytheG Avatar
      LarrytheG

      Well.. it’s really a core issue, indeed a Constitutional dilemma in the separation of church and state.

      when the state passes laws against discrimination – they’re supposed to apply to everyone. If they did not, there would be an “equal treatment” issue.

      We’re been walking this tightrope for as long as our Constitution promising “equal” along with no mixing State and Religion for a long time – and it’s still, obviously, not resolved.

      Which is somewhat interesting from a “law & order” perspective…

      1. tmtfairfax Avatar
        tmtfairfax

        Again, Larry, you are mixing a law on public accommodations a law that would require a person to perform a specific personal action. The two are very different under First Amendment law. And in the latter case, it’s the government interfering with a person’s religious beliefs.

        A government employee (say a judge) must officiate at a gay wedding all other things equal. But a religious official (minister, rabbi, inman or priest) can refuse based on his or her religious beliefs. The government cannot interfere into this religious issue.

        1. LarrytheG Avatar
          LarrytheG

          public accommodation law, right?

          So Jewish businesses would refuse to serve Muslims.

          Christians would refuse to serve homosexuals

          Muslims would refuse to serve women without hijabs…

          etc, etc?

          And when the Government is paying a contractor to provide a service, don’t they have to abide by discrimination laws as a condition of being paid?

          I understand how you feel. I’m just trying to sort out what’s fact and not as opposed to what one believes personally.

          What is the law on public accommodation?

          What is the law on govt contractors?

          1. tmtfairfax Avatar
            tmtfairfax

            One more time. There is a difference between enforcing public accommodation laws. You cannot exclude someone from eating at your restaurant, buying a pair of plyers at your hardware store, or getting a suit dry-cleaned because of a person’s race, religion or sexual orientation.

            But you can, as a minister, priest or inman morally opposed to gay marriage, refuse to officiate at one based on the First Amendment. I believe different rules apply if you are a government employee, such as a judge. If you don’t want to perform your legal duties, resign. It’s no different from a situation where a business owner prohibits its employees from wearing a tee-shirt that endorses a candidate for public office. But the same employee can put on the shirt as she gets in her car to go home or board the metrorail train.

          2. LarrytheG Avatar
            LarrytheG

            The issue is can a religious organization run a service – like foster care as a contractor to the govt and refuse to serve some clients that conflict with their beliefs?

            When they take the money, are they not operating as an agent of the Govt?

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