18 Jun 2021 Supreme Court Avoids Granting Religious Right to Discriminate Against LGBTQ People

Yesterday’s U.S. Supreme Court decision in support of a Philadelphia Catholic foster agency that refuses to place children in LGBTQ-parented households does not give organizations the right to discriminate based on religious beliefs. But it leaves the door open for inevitable future challenges to equal rights ordinances protecting people on the basis of sexual orientation or gender identification.

As we wrote a year ago, the case, Fulton v. City of Philadelphia, originated in 2018, when the city of Philadelphia ended its contract with Catholic Social Services (CSS) to screen and certify potential foster parents, after learning from a Philadelphia Enquirer report that the agency refused to place foster children with LGBTQ people or same-sex couples due to religious beliefs. Under its contract with the city, CSS was mandated to comply with the city’s human rights ordinance, which prohibits discrimination on the base of sexual orientation.

CSS sued the city and in June 2018 requested a preliminary injunction to prevent the city from ending its contract; the injunction was denied in U.S. District Court. The case made its way through the lower courts, and in August 2018, the U.S. Supreme Court declined to hear the case, with justices Clarence Thomas, Samuel Alito and Neil Gorsuch dissenting. In April 2019, the Third Circuit appeals court denied the injunction.

In July 2019, CSS returned to the U.S. Supreme Court again, and in February 2020, following the retirement of Justice Anthony Kennedy and the appointment of Brett Kavanaugh, a now conservative-majority Court agreed to hear the case—a signal to many court watchers that the plaintiffs’ religious freedom argument might receive a more sympathetic hearing the second time around.

Yesterday’s outcome contained some surprises.

Philadelphia Allows Exceptions to Non-Discrimination Clause

The Court’s unanimous decision upholds CSS’s argument that forcing it to place children with LGBTQ families violates its free exercise of religion; however, the Court based its ruling on the fact the City of Philadelphia has in its statutes provisions to make exceptions to its policies—even though the City says it has never made such an exception—and therefore must make an exception for CSS. The majority opinion, written by Chief Justice John Roberts and joined by justices Breyer, Kagan, Barrett, Kavanaugh, and Sotomayor, concludes:

“The creation of a system of exceptions under the contract undermines the City’s contention that its nondiscrimination policies can brook no departures…. The City offers no compelling reason why it has a particular interest in denying an exception to CSS while making them available to others.”

Thus, similar in many ways to the Supreme Court’s 2018 ruling in Masterpiece Cakeshop v. Colorado Civil Rights Commission, yesterday’s unanimous decision is narrowly focused on this specific situation in the city of Philadelphia, Pennsylvania.

LGBTQ rights activists say yesterday’s ruling was a win.

“Properly understood, today’s decision is a significant victory for LGBTQ people,” said National Center for Lesbian Rights Legal Director Shannon Minter, in a statement released by NCLV. “The Court ruled in favor of Catholic Social Services, but on the narrowest possible ground, based on language in the City of Philadelphia’s contract that authorized individualized exemptions for any provider. The Court did not change the current constitutional framework, which permits governments to enforce antidiscrimination laws that prohibit discrimination against LGBTQ people even when doing so may have a disparate burden on those who hold certain religious beliefs. As a result of today’s decision, those who feared the Court might create a sweeping new religious exemption to such laws can breathe a sigh of relief.”

In the majority decision, Roberts wrote, “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 cannot survive strict scrutiny, and violates the First Amendment.” The question before the court, he continued, was whether the city was within its constitutional rights to do so.

CSS asked the Court to revisit its 1990 decision in Employment Division, Department of Human Resources of Oregon v. Smith, which held that the state could deny unemployment benefits to a person who was fired for using peyote as part of a religious ritual, in violation of state law. In his opinion, Roberts wrote that the Court didn’t need to consider Smith in this case, because of a provision in the city’s contract for foster care services that grants the commissioner of the city’s Department of Human Services “sole discretion” to make exemptions on a case-by-case basis, as reported in the SCOTUSblog.

Unanimous Decision Joins Liberal, Conservative Justices

Another surprise from yesterday’s ruling was the seeming absence of a conservative-liberal divide—on this decision at least. Roberts was joined in his majority decision by liberal justices Steven Breyer, Elena Kagan and Sonia Sotomayor, as well as by conservatives Brett Kavanaugh and Amy Coney Barrett. This may be another confirmation, as we have written before, that Supreme Court justices don’t always behave the way the presidents who nominate them expect them to.

“…history has shown us that Supreme Court justices, who are appointed for life, don’t always vote in accordance with their liberal or conservative backgrounds. For example, now-retired Justice Anthony Kennedy, who was nominated to the Court by President Ronald Reagan, angered conservatives in 1992 when he joined with Justices Sandra Day O’Connor and David Souter to uphold Roe v. Wade in the case Planned Parenthood v. Casey.

"When Obergefell was decided in 2015, Kennedy wrote the majority opinion, joining liberal Justices Ruth Bader Ginsberg, Steven Breyer, Sonia Sotomayor and Elena Kagan. Conservative Chief Justice John Roberts, with Justices Antonin Scalia, now deceased, Thomas and Alito dissenting."

While yesterday’s narrowly focused ruling may not have been the resounding victory conservatives hoped for—enshrining the right to discriminate against LGBTQ people on religious grounds—there is no doubt it provides a sufficient platform for more cases of its kind.

Justices Barrett, Alito and Gorsuch wrote concurring but separate opinions, joined by other conservative justices. Barrett wrote that while CSS had made serious arguments for overruling the Smith decision, “the same standard applies regardless whether Smith stays in place,” and therefore the Court has no reason to “decide in this case whether Smith should be overruled, much less what should replace it.” Kavanaugh joined Barrett’s decision, as did Breyer, aside from its first paragraph.

In a 77-page separate opinion, joined by Roberts and Gorsuch, Alito criticized the narrowness of the Court’s ruling in Fulton, saying it “provides no guidance” for future disputes. He then continued to severely criticize the Court’s Smith decision, seemingly in support of overturning the 1990 decision.

Like yesterday’s decision, the Masterpiece Cakeshop decision also was narrowly focused. Rather than addressing the central question of whether the baker could legally refuse to serve LGBTQ people on religious grounds in violation of anti-discrimination laws, the Court ruled for the plaintiff based on its judgment that the state’s civil rights commission expressed hostility toward religion—in that specific case.

CSS built its case in part on the Masterpiece Cakeshop ruling, arguing that it, too, had been subjected to anti-religious prejudice by the City of Philadelphia. One day in the not-too-distant future, no doubt, we will see another challenge to LGBTQ civil rights protection basing its arguments on yesterday’s Fulton v. City of Philadelphia ruling. In his separate decision in yesterday’s case, Gorsuch acknowledges that the Court’s ruling did nothing to finally settle the question of whether religious organizations have the right to discriminate, writing, “the majority’s course guarantees that this litigation is only getting started.”

In short, yesterday’s decision, while not the blow to LGBTQ protections that it might have been, is not the end of the story. Just as conservative politicians and activists will continue challenging women’s constitutional right to choose with onerous anti-abortion laws, so will we see more religious challenges to laws protecting LGBTQ rights. In the near-term, maybe the best we can hope for is, as in the Masterpiece Cakeshop and Fulton v. Philadelphia cases, that the Court continues to make the narrowest possible rulings.

Nevertheless, I continue to take comfort in Supreme Court history: We can prognosticate and predict all we want based on what we think we know of the justices, their backgrounds and their philosophical underpinnings. But over the decades what we see happening is that the justices to an overwhelming extent vote in harmony with the hearts and minds of the American public. Maybe I’m just over-optimistic because it’s Pride Month and our country is slowly but steadily coming back from a global pandemic and worldwide economic crisis, but I just have to believe that hearts and minds ultimately will come down on the side of fairness and equality for all.