A Timid and Temporary Defense of the Free Exercise of Religion
"This decision might as well be written on the dissolving paper sold in magic shops."
So wrote Justice Samuel Alito in the concurring opinion he filed last week in a case that pitted the City of Philadelphia against Catholic Social Services (CSS).
The court voted 9-0 in favor of CSS. But the arguments presented were far from unanimous.
Chief Justice John Roberts wrote a weak opinion based on a technicality -- and was joined by Justices Stephen Breyer, Sonia Sotomayor, Elena Kagan, Brett Kavanaugh and Amy Coney Barrett. Justice Alito wrote a forceful counterargument based on the Constitution itself -- and was joined by Justices Clarence Thomas and Neil Gorsuch. (Barrett, joined by Kavanaugh and partly by Breyer, and Gorsuch, joined by Thomas and Alito, also filed concurring opinions.)
The question was: Can Philadelphia force CSS to either hand over foster children to same-sex couples or give up placing foster children altogether?
Notably, as Alito observed, Catholic institutions started taking care of orphans in Philadelphia more than 200 years ago -- long before the local government got involved.
"One of the first orphanages in Philadelphia was founded by a Catholic priest in 1798," Alito wrote.
St. Elizabeth Ann Seton and the sisters who joined her religious order, the U.S. Conference of Catholic Bishops noted in their own brief to the court, began taking care of orphans in Philadelphia 16 years after that.
"In 1814, Mother Seton dispatched sisters from their motherhouse in Emmitsburg, Maryland, to Philadelphia, where they established St. Joseph's Asylum, one of the first Catholic orphanages in the United States," the bishops said.
"During the latter part of the 19th century and continuing into the 20th century, the care of children was shifted from orphanages to foster families," Alito explained, "but for many years, state and local government participation in this field was quite limited."