24 Jun 2020 Supreme Court Religious Freedom Case Could Enshrine Right to Discriminate
In a historic decision last week, the U.S. Supreme Court ruled that LGBTQ Americans are protected under the 1964 Civil Rights Act from being fired because of their sexual orientation or gender identity. But a religious freedom case in which a Catholic foster agency is suing the City of Philadelphia for the right to discriminate against LGBTQ potential parents has caught the interest of conservative justices. The case could open the door to legal discrimination, not only against LGBTQ Americans, but against any person, organization or event, on the basis of religious belief.
The U.S. Supreme Court has dominated headlines recently with a series of decisions upholding LGBTQ employment rights and the rights of undocumented immigrant “Dreamers” brought to the United States as children. While progressives celebrate the unexpected rulings, conservatives are questioning the success of their court-packing campaign. But it’s too soon to celebrate: At least one religious liberty case now before the Court has the potential to give anyone the right to discriminate—as long as they can say, “my religion tells me to do it.”
LGBTQ Americans rightly celebrated the U.S. Supreme Court’s historic 6-3 ruling on June 15 affirming that Title VII of the 1964 Civil Rights Act protects employees from being fired because of their sexual orientation.
The decision, which combined three cases—Bostock v. Clayton County, Ga., Altitude Express Inc. v. Zarda, and R.G. & G.R. Harris Funeral Homes, Inc., v. Equal Employment Opportunity Commission—affirmed the right to work in this country free of discrimination because of gender identity or sexuality. Written by Justice Neil Gorsuch and joined by Chief Justice John Roberts, the decision confirms that transgender people, and lesbians, gay men, and bisexual people throughout the country are entitled to the same respect, protection, and fair treatment afforded all workers under the law.
But while the Court’s Title VII decision and its historic June 18 decision upholding the Deferred Action for Childhood Arrivals program (DACA) have been a source of joy and relief for millions of LGBTQ and undocumented Americans, another case that attempts to justify discrimination on religious grounds remains to be heard, with several justices signaling their eagerness to take it on.
Catholic Foster Agency Sues for Right to Exclude LGBTQ Potential Parents
That case, Fulton v. City of Philadelphia, originated in 2018, when the city of Philadelphia ended its contract with Catholic Social Services to screen and certify potential foster parents. The city allowed the annual contract to expire after learning from a Philadelphia Enquirer report that the agency refused to place foster children with LGBTQ people or same-sex couples on religious grounds, in violation of its contract and the city’s human rights ordinance, as reported by Slate.
Catholic Social Services sued the city in May 2018 and in June 2018 requested a preliminary injunction to prevent the city from ending its foster referral contract. The injunction was denied by the U.S. District Court for the Eastern District of Pennsylvania. CSS immediately filed an appeal with the Third Circuit Court of Appeals, which unanimously affirmed the decision of the lower court.
What happened next may help predict whether the case will be better received by the Supreme Court’s newly conservative majority. As the Slate article outlines, in August 2018 the U.S. Supreme Court declined to hear the case; however, three justices, Clarence Thomas, Samuel Alito and Neil Gorsuch, dissented. In April 2019, the Third Circuit appeals court also denied the injunction.
In July 2019, CSS again asked the U.S. Supreme Court to review the case, and in February 2020, following the retirement of Justice Anthony Kennedy and the appointment of Brett Kavanaugh, a now conservative-majority court agreed to do so. The outcome could determine whether individuals can legally discriminate against any protected party because their religious faith tells them to discriminate. On June 4, although it has no direct involvement in the case, the Trump Justice Department, along with scores of conservative organizations and several states attorneys general, filed an amicus brief supporting CSS’s religious freedom arguments.
Fulton v. City of Philadelphia argues that, in ending its contract with CSS for refusing to place foster children with LGBTQ parents, the city of Philadelphia violated the “free exercise” clause contained in the 1st Amendment to the U.S. Constitution: “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof….”
In its request for injunction, CSS maintains that its services for foster children, including its practice of excluding LGBTQ people from placements, are part of its free exercise of religion. “Catholic Social Services strives to provide foster care services in a manner consistent with Catholic religious teaching and has done so for decades.”
Newly Conservative SCOTUS Could Overturn Landmark Religious Discrimination Law
The case asks the Court to overrule a landmark case, Employment Division v. Smith, that has been a bedrock of federal anti-discrimination law since 1990. In Smith, the court ruled that “neutral laws of general applicability” do not violate the First Amendment, even if they burden religious exercise. This means that rules prohibiting discrimination do not violate the religious protections of the 1st Amendment if they are applied equally to everyone, regardless of religion. In the Smith decision, the Court writes:
Although a State would be "prohibiting the free exercise [of religion]" in violation of the Clause if it sought to ban the performance of (or abstention from) physical acts solely because of their religious motivation, the Clause does not relieve an individual of the obligation to comply with a law that incidentally forbids (or requires) the performance of an act that his religious belief requires (or forbids) if the law is not specifically directed to religious practice and is otherwise constitutional as applied to those who engage in the specified act for nonreligious reasons.
In Smith, the plaintiffs were members of the Native American Church and counselors at a private drug rehabilitation clinic and were fired for smoking peyote. At the time, intentional possession of peyote was a crime under Oregon law without an affirmative defense for religious use. After being fired, they were also denied unemployment benefits by the State of Oregon. The plaintiffs claimed smoking peyote was a religious practice. The State Court of Appeals upheld the plaintiffs’ right to smoke peyote as a religious practice and reversed the denial of unemployment claims, and the Oregon Supreme Court concurred. But the U.S. Supreme Court ruled otherwise.
Conservative Justice Antonin Scalia (now deceased) wrote in the majority (6-3) opinion in Smith that Oregon’s ban on peyote possession is not targeted at adherents of a particular religion but applies to anyone in the state who possesses the illegal controlled substance, and that religious motivation cannot be used as a reason to violate generally applicable laws. The opinion cited the 1878 Reynolds v. United States decision, which held that laws such as those prohibiting polygamy or child labor were not a violation of religious freedom: “To permit this would be to make the professed doctrines of religious belief superior to the law of the land, and in effect to permit every citizen to become a law unto himself.” Indeed, Scalia wrote, to do so would be to “court anarchy.”
Right Mounts Campaign to Roll Back LGBGT Rights Via Religious Freedom Cases
It is worth noting the shift in the type and treatment of religious freedom cases as the Court has become more conservative. When Scalia wrote the Smith opinion in 1990, rejecting its religious freedom argument, the conflict was between state law and a minority religion, the Native American Church.
In more recent years, particularly since the legalization of same-sex marriage in the United States in 2015, the cases that have come before the Court have tended to be brought by Evangelical or conservative Christians who seek to discriminate against LGBTQ people based on religious beliefs.
The Court’s conservative justices have already expressed interest in revisiting Smith. In December 2019, four of them, Alito, Thomas, Gorsuch and Kavanaugh, in a decision declining to hear a case, signaled a willingness to revisit Smith and another religious freedom case, Trans World Airlines, Inc., v. Hardison (1977). Should they succeed in persuading Chief Justice John Roberts, Fulton v. Philadelphia could be a vehicle to expand the religious freedom to discriminate, not only against LGBTQ people, but against any individual, program or practice, under the cover of religion.
Fulton v. Philadelphia also leans heavily on a more recent case of LGBTQ discrimination, Masterpiece Cakeshop, LTD, et al. v. Colorado Civil Rights Commission et al. In that case, a baker refused to bake a wedding cake for a same-sex couple, arguing that doing so would be contrary to his religious beliefs.
In that case, on which the Court ruled in favor of the baker 7 to 2, the Court did not answer two 1st Amendment questions raised by the case: Whether being forced to bake the cake would have violated the baker’s free exercise of religion, and whether forcing him to bake the cake would be “compelled speech” and a violation of the free speech clause. Rather, it ruled on narrow grounds that the Colorado Civil Rights Commission demonstrated “impermissible hostility” toward religion. Reviewing the case for the American Bar Association’s Human Rights Magazine, Vol. 43, No. 4, Erwin Chemerinsky writes, “But with Justice Anthony Kennedy’s retirement, it is likely that there are five votes in the future to allow businesses to discriminate. This would open a potentially broad exception to federal, state and local civil rights laws.” In their concurring opinions on Masterpiece, both Thomas and Gorsuch wrote that the baker should have also won on free speech grounds.
As Chemerinsky’s analysis of the Masterpiece decision points out, if the Court were to overturn or limit Smith, any person or company could claim the right to discriminate based on religious beliefs. “The Court long has held that the focus in religious freedom cases is whether a particular person has a sincerely held religious belief, not what the religion teaches. There would be no way to keep a business owner from saying that his or her religion requires not serving women or Jews or Muslims or any group.”
The high court decisions of the past few days rightly have LGBTQ people and progressive Americans celebrating. But with at least six more months of a Trump administration bent on weakening or retracting recently won LGBTQ rights, and a conservative-majority court seemingly eager to gratify Trump’s Evangelical base, it is too soon to rest on our laurels. According to SCOTUS Blog, arguments in Fulton v. Philadelphia are likely to be heard in October.
