Religious Freedom Vs. LGBTQ Rights: US Supreme Court Sides With Catholic Foster Care Agency

[USA TODAY] 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.

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.”

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.

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.

[USA TODAY] 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.

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.”

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.

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.