Next Wednesday, the day after Election Day in the U.S., the Supreme Court will hear oral arguments in Fulton v. City of Philadelphia. The case centers on the question of whether adoption and foster care providers with religious affiliations who receive taxpayer funding can legally discriminate against LGBTQ clients. An anti-equality ruling in this case might also have much broader consequences.
In the previous Court session which ended in the summer of this year, the Justices had already issued significant rulings on matters related to employment discrimination, LGBTQ rights, and religious liberty. In June, the Bostock decision ensured that workers in the U.S. could no longer be discriminated against based on their sexual orientation and/or gender identity. The next month, however, the Court undercut that ruling in O.L. of Guadalupe by providing religious employers a wide exemption from non-discrimination laws as long as a given employee is defined as a minister.
But the questions in Fulton are much larger than these past cases. And with the seating of Justice Amy Coney Barrett, the Court has definitively shifted to the right, and LGBTQ equality is imperiled. The already wide latitude given to claims of religious liberty by the court under Chief Justice John Roberts could expand greatly. Some analysts suggest Obergefell could easily be overturned, ending federal recognition of marriage equality.
These emerging realities have many people wondering about the future of the Supreme Court as a protector of civil liberties. But also worth pondering is what to make of the Court in light of Pope Francis’ recent support for legal recognition of same-gender couples, particularly when it comes to the six Catholic justices, which includes Barrett, who follows an ultra-conservative branch of the church.
Two op-eds published recently take up this juncture of the pope and the new associate justice. John Casey, editor at large for The Advocate, wrote:
“Pope Francis is more of a divine person, more of a tolerant human, more of an empathetic soul, and more Catholic than someone like Amy Coney Barrett. She must be knelt over with her rosary praying for Francis to keep his mouth shut and asking God to doom him.
“I wonder what God thinks of her? I wonder what Francis thinks of her? My wish is that they shake their heads, consider her judgmental, pray their rosaries that by some miracle she doesn’t reach the high court. But the reality is we can’t speak for God. No one can. But Francis comes close to someone who might. Therefore, he probably keeps to himself and doesn’t say or do anything unkind. And that’s the beauty of Francis. He exudes the kindness of God in an era when there is so much unkindness, so much judgment, so much hatred, and so much vitriol. And at a time when it seems so many people feel that they can speak for God and show contempt for us [LGBTQ people].”
Randall Balmer, a professor at Darmouth College, wrote in Yahoo News that he welcomed the pope’s words as a sign of inclusion, then continued:
“Still, it would be instructive to hear how some Catholics understand the pope’s statement. Looking at you, Judge Amy Coney Barrett. . .As a devout Catholic, do you have any thoughts on the pope’s statement in defense of civil unions?
“Back in 2013, Pope Francis caused another furor over sexual matters and the church when he told an airplane full of reporters, ‘If a person is gay and seeks God and has goodwill, who am I to judge?’
“But Amy Coney Barrett is a judge, and she will have a major voice in deciding these issues — not merely for herself , but for millions of Americans.
“Are homosexuals children of God? Do they have a right to a family? Is the separation of church and state constitutional?
“Judge Barrett, would you care to comment?”
The pope’s endorsement of civil unions could have possibly had an effect on other Catholic actors in the Fulton case, namely the Catholic dioceses and Philadelphia’s Catholic Social Services who have brought the case forward. Shouldn’t they have been affected by the pope’s words to rethink their case? According to a report in Gay City News, that seems highly unlikely given the statements from all parties involved. The Archdiocese Milwaukee, a plaintiff in the case, issued a statement through its lawyers suggesting the pope’s words would have “no impact.” Another plaintiff, the Archdiocese of Philadelphia, issued a similar message.
LGBTQ advocates from the Freedom from Religious Foundation and Lambda Legal agreed that the pope’s words would have minimal effects. But if not bearing any legal weight, Francis’ endorsement of civil unions is still important for the larger struggle, according to a Catholic lawyer:
“James K. Riley, a New Jersey attorney who filed an amicus brief on behalf of 27 Catholic lay persons supporting the city of Philadelphia’s position, said, the pope’s sentiments reflect those of ‘millions of Catholics’ and are ‘a great step.’
“He added, ‘Nobody is asking Catholic Social Services’ to affirm ‘sacramental marriage’ for gay couples.”
The questions for the Supreme Court next week are complex, but, at the very least, it must be remembered that Amy Coney Barrett’s extreme version of Catholicism is a minority in the U.S., where Catholics overwhelmingly support marriage equality and a myriad of other LGBTQ rights.
Interested in learning more about these issues? Register for New Ways Ministry’s upcoming presentation and discussion with Professor Leslie Griffin, “The Supreme Court & LGBTQ Issues: What Catholics Need to Know in 2020.” It will be held this Sunday, November 1 at 4:00 pm Eastern U.S. Time.
Professor Griffin is the William S. Boyd Professor of Law at the University of Nevada, Las Vegas, School of Law, and also has a doctorate in Religious Studies and was on the faculty of the Theology Department at the University of Notre Dame, Indiana.
—Robert Shine, New Ways Ministry, October 30, 2020