In Fulton v. City of Philadelphia the U.S. Supreme Court will decide yet another legal controversy that should not have occurred at all. Like the various cake-designing law suits, two parties that easily could have come to a mutually agreeable compromise decided, as the old saw goes, “to make a federal case of it.” Now, with the decision bound to abridge somebody’s constitutional right, we will have yet another example of how “Hard cases make bad law.”
This week the Justices heard arguments testing its 2015 decision establishing a right to same-sex marriage with Philadelphia’s decision to bar a Catholic agency that it had hired to screen potential foster parents because the agency refused to screen same-sex couples and approve them, since the position of the Church is that same-sex marriage is a sin. Hence the question: Is Philadelphia discriminating on the basis of religion by refusing to continue using the agency based on its religious mandates? The Church’s lawyer, Lori Windham, says that the agency only wants to continue work that it has been doing for centuries. Besides, she argued, gay couple had ever applied to the agency. If one had, she said, the couple would have been referred to another agency.
What’s the beef, then? Justice Alito says that like the bakery cases (my comparison, not his), LBGT activists want to bend the Church to its will, resulting in Philadelphia acting based on hostility to the Catholic agency’s views.
“If we are honest about what’s really going on here,” he told Neal Katyal, the city’s famous civil rights lawyer, “it’s not about ensuring that same-sex couples in Philadelphia have the opportunity to be foster parents. It’s the fact that the city can’t tolerate the message that Catholic Social Services and the archdiocese are sending by continuing to adhere to the old-fashioned view about marriage.”
That does not seem like an unfair assessment, if the question is “What’s going on here?”
Similarly, Justice Kavanaugh opined that Philadelphia was “looking for a fight and has brought that serious, controversial fight all the way to the Supreme Court even though no same-sex couple had gone to C.S.S., even though 30 agencies are available for same-sex couples and even though C.S.S. would refer any same-sex couple to one of those other agencies….What I fear here is that the absolutist and extreme position that you’re articulating would require us to go back on the promise of respect for religious believers.”
Exactly. That’s exactly what same-sex marriage advocates want—not just the right, but an official declaration that those who hold a different opinion are bigots and bad.
Philly barred Catholic Social Services from screening potential foster parents after the Philadelphia Inquirer described the agency’s policy against placing children with same-sex couples. The agency and several foster parents then sued the city, seeking to be reinstated and arguing that the city’s action violated their First Amendment rights to religious freedom and free speech. But a unanimous three-judge panel of the U.S. Court of Appeals for the Third Circuit ruled against the agency, holding that the city was entitled to require compliance with its nondiscrimination policies.
A SCOTUS ruling might have been unnecessary had now-retired Justice Anthony Kennedy not written such a mushy, weasel-word filled majority opinion in Obergefell that called for “an open and searching debate” on same-sex marriage, writing that “the First Amendment ensures that religious organizations and persons are given proper protection as they seek to teach the principles that are so fulfilling and so central to their lives and faiths, and to their own deep aspirations to continue the family structure they have long revered.” Kennedy—good riddance, in my view— could have stated that gay Americans must have the same right to marry as heterosexual Americans under the Equal Protection Clause, and that religions did not have to endorse gay marriage, but they couldn’t take action to block it either. That would have helped. So would flexibility by the Catholics, who could have decided that their Bible-based opposition to gay marriage did not have to prevent the agency from assessing on a gender-neutral basis whether a same-sex couple appeared to be fit to foster a child.
Justice Elena Kagan, whom some (like me) might say has a personal conflict of interest in this matter, asked whether the eradication of discrimination based on sexual orientation was a compelling state interest.
Eradication, eh? The newest Justice, who is Catholic as everyone knows by now, asked more balanced question:
“What if there was an agency who believed that interracial marriage was an offense against God and, therefore, objected to certifying interracial couples as foster families?”
Lawyer Windham responded that the “government has a compelling interest in eradicating racial discrimination.” Ugh. Bad answer. That would suggest that eliminating discrimination based on sexual orientation was not a “compelling state interest.”
Meanwhile, Philadelphia’s lawyer argued that when the government hires independent contractors it acts on its own behalf and can include provisions barring discrimination in its contracts. Thus it is up to a religious organization whether it chooses to meet the requirements of the contract, or take a rigid stand and pass up the assignment and the income. He added that there was no evidence of the city’s hostility to religion, as it continued to use the Catholic agency in other parts of its foster care system, netting the Church’s group $26 million a year. If I were on the Court, I would support the city here, and hope the majority opinion was sufficiently narrow.
My guess is that the Court will not see it my way, and that a majority of Thomas, Alito, Gorsuch, Kavanaugh and Barrett (and maybe Roberts) will rule for the Church.