The ABA submitted an amicus brief in the Catholic case.
Supreme Court rules for Catholic foster agency that refuses to place children with same-sex couplesSo this is the Court's reasoning:The ABA had submitted an amicus brief arguing that Catholic Social Services must adhere to the government’s nondiscrimination policies.
So the case turned on which level of scrutiny applies to the case.Roberts said the case is not governed by the 1990 Supreme Court decision in Employment Division v. Smith, which applies when laws burdening religion are neutral and generally applicable. Smith said such laws are reviewed using a lower level of scrutiny, making them likely to survive a free exercise challenge.In this case, Philadelphia’s policies are not neutral and not generally applicable, so the highest level of scrutiny applies, Roberts said.
Roberts pointed to the city’s foster care contract, which gives the city “sole discretion” to grant an exemption to its policy of nondiscrimination. Because of the discretionary system, Philadelphia’s nondiscrimination requirement is not generally applicable, Roberts said.
Since Smith doesn’t govern, Philadelphia’s policy must be subjected to strict scrutiny, Roberts said. And the city has no compelling reason why it has a particular interest in denying an exception to Catholic Social Services but not to others.
Determining a Level of Scrutiny
The court must determine whether it will be skeptical of government action, or be less nit-picky. That depends on the sensitivity of the issue. Certain liberties are more highly protected than others. Certain classes of people are more highly protected than others. These factors raise suspicion.
The court will evaluate various factors that are likely to raise suspicion to determine the level of scrutiny.
Spectrum
You can consider the levels of scrutiny as existing on a spectrum: where Rational-Basis Review is at one end and Strict Scrutiny is at the other.