One More Time: SCOTUS Must Decide Between Freedom Of Religion And Gay Rights in Fulton v. City of Philadelphia

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.

10 thoughts on “One More Time: SCOTUS Must Decide Between Freedom Of Religion And Gay Rights in Fulton v. City of Philadelphia

  1. Apropos of nothing, does anyone here live in Columbus, Ohio or know someone who does? My sworn brother lives there and doesn’t have anyone to hang out with, and it’s wearing him down.

    Back to on-topic, I find your take eminently reasonable. It seems like all the nuance and acceptable alternatives are already there for people who bother to look for them. When I observe humans, either directly or via news, I find most of them tend to latch onto a proposed solution, which other humans then oppose, and they push back and forth while neither side offers or listens to any constructive alternatives. I aim to put an end to this pattern. Through the end of December, I’m working with an action circle to design and implement a workshop to help people frame problems and solutions constructively.

    Anyone want in?

  2. Jack, I’m not certain that this is the type of EA thread that will produce a lot of action. But I thank you sincerely for bringing it here; I hope you’ll continue to post on this story.

    I may have mentioned this before, but some years back I worked a case providing communications counsel to a Catholic diocese opposed to a same-sex marriage referendum. I view my work as similar to that of attorneys: I don’t have to agree with a client, but I do have an obligation to provide them with the best counsel I can.

    It was one of the most interesting cases I ever worked on. I personally couldn’t care less who sleeps with what, provided that both (or all twelve) agree that it’s a good idea. But I did come to a few conclusions, those being 1) the Diocese may have been wrong on the merits, but their objections were based on metaphysics and sincere; 2) society DOES have a vested interest in giving kids the best possible start – which is why it grants special privileges to married heterosexual couples (SSM advocates often noted that privileges such as tax breaks were denied that community); 3) SSM proponents were poltically savvy an unethical, frequently using a host of rationalizations (not least of which was “the ends justify the means”).

    The law legalizing SSM passed, and I wasn’t horrified. But I absolutely saw, and respected, my client’s POV.

  3. Disentangling the religious and the legal marriage is long overdue. Put the legal contract part on paper and use the legal system to enforce it and put the religious into the “None of your DAMN business” and end this

  4. I just don’t see why some people have to make a big stink about this Catholic agency’s stance. LG/TQ’s basically have a new and unique kind of privilege, especially in larger cities, of a multitude of businesses and agencies that want their patronage or use of services.

    There’s plenty of agencies that would be thrilled to work with a “queer” couple. Same with flower shops and bakeries.

    When we looked for wedding rings, a jeweler near us was beyond unhelpful. He literally started telling me that some NFL player had just come out, and how he thought it was gross. I was upset but let it go because every other shop was practically gleeful to help us.

    At the end of a Catholic hospital stay, a doctor asked me if I had a ride home. Prior to that he and I had a good rapport. When I said “my wife” he said “you mean your partner?” At the time we only had legal domestic partnership but we still called each other wife. When I said “no I mean my wife” he tossed a clipboard at my feet and stomped out of the room. Worse, my wife needed a diagnosis so she could get the time off work excused. He refused to give a diagnosis.

    We complained to the administration.

    I really go back an fourth. The doctor and the jeweler were assholes. Both events hurt and shouldn’t have happened, especially at the hospital. But for a religious adoption agency, I wouldn’t want to force them to be uncomfortable just so I can prove a point, which is what a lot of these cases appear to boil down to. Disgruntled LG/TQ’s and their lawyers seem like they’re trying to socially control others into their version of holiness.

    That also seems like an infringement of rights.

  5. The solution is very clear given that there are many other agencies available for similar services. I think one of the reasons there are many agencies would be the need to cater to different sections of the demographic.
    Terminating the agency I just targeting them on the basis of their religious beliefs.

    The major problem here is the slippery slope that anti-discrimination legislations always draw the state into. All anti-discrimination legislations fly in the fact of the right to freedom of association by forcing people to interact with people they would rather not.
    They always seem helpful at first, but they always provide an opening for descending into totalitarianism.
    Oppressed and marginalized groups will always exist. Social assimilation and acceptance are issues that should totally exclude government interference. Beyond protecting them from violence and outright extortion, and making the laws as all encompassing and accomodating as possible, government has no business in forcing social assimilation and interactions.

  6. Thank you for pointing out this case, Jack, and for your analysis. With all else going on nationally and locally, I missed it. And now I will follow it. Speaking of local government [I’ve spent 27+ years in it]: does the Roman Catholic Church — by extension any entity — have a right to government contracts? I think not. Similarly, doesn’t the government — like any contracting entity — have the right to insist on certain non-negotiables? I think yes, especially when these are set pursuant to duly passed local ordinances. Analogously, the City has no authority to tell the Church who it must screen or not screen, as long as no City grants or contract funds are involved. Make this case just go away. In its way, it’s madness, because it’s unnecessary.

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