Religious freedom vs. LGBTQ rights: Supreme Court sides with Catholic foster care agency
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WASHINGTON – A unanimous Supreme Court ruled Thursday that a Catholic foster care agency in Philadelphia may turn away gay and lesbian couples as clients, a victory for conservatives with the potential to shift the balance between LGBTQ rights and the First Amendment’s protection of religious exercise.
In one of the most significant cases before a Supreme Court that has become more conservative in recent years, the justices handed down the most high profile defeat to LGBTQ rights advocates since a 2018 decision absolved a Colorado baker of discrimination for refusing to create a custom wedding cake for a same-sex couple.
Catholic Social Services said its religious views keep it from screening same-sex couples as foster parents. The agency, with a long history of placing foster children, said it shouldn’t be blocked from its work because of those views. Philadelphia countered that all of itsfoster care agencies are required to not discriminate on the basis of sexual orientation.
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The Catholic agency “seeks only an accommodation that will allow it to continue serving the children of Philadelphia in a manner consistent with its religious beliefs; it does not seek to impose those beliefs on anyone else,” Chief Justice John Roberts wrote for the court. “The refusal of Philadelphia to contract with CSS for the provision of foster care services unless it agrees to certify same-sex couples as foster parents…violates the First Amendment.”
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Because the case was considered among the most contentious on the court’s docket, most observers assumed the justices would split along ideological lines. But the decision ultimately came both earlier than expected, and with less division. The court’s three liberal members – Associate Justices Stephen Breyer, Sonia Sotomayor and Elena Kagan – all joined Roberts’ opinion.
“It is striking, and telling, that the court’s more liberal justices joined the court’s decision,” said Richard Garnett, director of the University of Notre Dame law school program on church, state and society. “Today’s ruling illustrates that respect for religious freedom should not be a partisan, or left-right issue.”
The more conservative court had presaged the outcome with a series of decisions throughout the year in which it sided with houses of worship seeking protection from state COVID-19 restrictions. Because of that, many legal scholars had correctly predicted the court would ultimately side with the Catholic agency.
But Roberts also kept the opinion more narrow than many conservatives had hoped. Religious freedom advocates thought the Philadelphia case would give the justices a vehicle to overturn a controversial 1990 decision in which the court held that governments may impose restrictions that affect a religious entity as long as those restrictions are “generally applicable.” Generally applicable laws are those applied equally to religious and secular activities.
Roberts wrote Thursday that the prohibition on discrimination in Philadelphia was not generally applicable because it allowed the city to offer exceptions in some cases. Overturning the 1990 decision, Employment Division v. Smith, could have opened new challenges to other laws affecting religion.
The narrow opinion drew criticism from the court’s conservatives. Associate Justice Neil Gorsuch accused his colleagues of seeking to “sidestep the question.”
“They say, there’s no ‘need’ or ‘reason’ to address the error of Smith,” Gorsuch wrote. “On the surface it may seem a nice move, but dig an inch deep and problems emerge.”
Philadelphia officials said they were disappointed by a decision they described as usurping the city’s judgment “that a non-discrimination policy is in the best interests of the children in its care.” City Solicitor Diana Cortes warned in a statement of “disturbing consequences for other government programs and services.”
But religious groups framed the decision as protecting the Catholic agency from government overreach into its constitutionally protected religious freedom.
“It’s a beautiful day when the highest court in the land protects foster moms and the 200-year-old religious ministry that supports them,” said Lori Windham, senior counsel at Becket, a nonprofit law firm that represents litigants fighting for religious groups.
The case, Fulton v. Philadelphia, was another in a series of challenges brought by Catholic and other religious groups and individuals that object to same-sex marriage. LGBTQ advocates had scored a significant victory in a 2015 decision that legalized gay marriage and a case last year in which the court extended federal anti-discrimination protections to LGBTQ employees.
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On the other hand, a divided Supreme Court in 2018 criticized Colorado’s treatment of a baker’s religious objections to gay marriage in 2012. The justices ruled that a state civil rights commission was hostile to him while allowing other bakers to refuse to create cakes that demeaned gays and same-sex marriages. It left unresolved whether other bakers, florists and photographers could refuse wedding services to gay couples.
The latest ruling continues a trend in which the high court has looked kindly on religion. In 2020 alone, the court ruled in favor of religious freedom by making religious education eligible for public aid in some circumstances, exempting religious schools from most employment discrimination claims, and allowing religious or moral exemptions for employers who oppose contraceptives.
And that was after rulings in recent years that made churches eligible for some public funds, upheld public prayer at government meetings, exempted religious objectors from laws regarding contraception and same-sex marriage, and allowed a mammoth Latin cross to remain on government land.
During nearly two hours of oral arguments in November, many of the justices appeared to side with the Catholic group. Associate Justice Brett Kavanaugh acknowledged at the time that both sides in the conflict between religious rights and gay rights “warrant respect.” But he said that Philadelphia appeared to be “looking for a fight.”
That’s partly because, he said, no same-sex couples had actually been denied by the Catholic agency because they had, instead, gone to other, non-religious agencies.
Sotomayor countered during arguments that a ruling for the Catholic group could open up other sticky challenges down the line.
“What is dangerous is the idea that a contractor with a religious belief could come in and say, exclude other religions from being families, certifying families,” she said. “Exclude someone with a disability. How do we avoid that? Or exclude interracial couples.”
Both a federal district court and the Philadelphia-based U.S. Court of Appeals for the 3rd Circuit had sided with the city in the case.
Contributing: Richard Wolf
This article originally appeared on USA TODAY: Religious freedom vs. LGBTQ rights: Supreme Court sides with Catholic foster care agency