This guest post is by Patrick Hornbeck who is professor of theology at Fordham University, where he is also a J.D. student in the School of Law.
Professor Hornbeck will be speaking tonight, Thursday, November 5th, 8:00 p.m., Eastern U.S. Time, on “SCOTUS, Pope Francis, Civil Unions, and the 2020 Election: What Does All This Mean?” The Zoom program is sponsored by Affirmed Chicago and Out at St. Paul. For more information, click here or email OSP@stpaultheapostle.org.
One major figure in the tortuous saga of the Roman Catholic Church’s relationship with the LGBTQ+ community was noticeably absent from the U.S. Supreme Court yesterday: Pope Francis.
The justices were hearing oral arguments in Fulton v. City of Philadelphia, which concerned whether the city could require Catholic Social Services (CSS) to assess same-sex couples for fitness as foster parents. Philadelphia had long contracted with CSS as a provider of foster-care services, but two years ago, when the city learned that a different religiously affiliated agency had refused to work with a same-sex couple, it chose not to renew its contracts with all agencies that discriminate, including CSS.
As readers of Bondings 2.0 know, Pope Francis has a complex history of public remarks concerning the dignity and, sometimes, the civil rights of LGBTQ+ individuals and families. From “Who am I to judge?” to the comments about secular civil unions revealed last month in the documentary Francesco, the pope seems to have sought to walk a fine line between affirming magisterial Catholic doctrine on homosexuality (and gender identity) and reaching out to the LGBTQ+ community as a pastor. His remarks on civil unions seem at least somewhat pertinent to the Philadelphia dispute. After all, the city was not asking CSS to bless same-sex households religiously, but only to affirm that they meet secular standards of suitability for foster children.
So one might have expected the pope’s words to make an appearance in yesterday’s arguments at the Court. One amicus curiae (friend of the court) brief submitted on the city’s behalf by a group of lay Catholics urged the justices to listen to Pope Francis as “the hierarchical leader of the Roman Catholic Church,” whose “message of inclusion has been conspicuously disregarded by the Petitioners.” The U.S. Conference of Catholic Bishops’ brief, by contrast, quoted the pope only to the effect that he had praised adoptive and foster parents.
But the lawyers neither for CSS nor for the city invoked the pope. And for the city at least, that was good legal strategy.
The city’s omission might seem counterintuitive: if the Catholic Church’s highest authority is now on record urging governments to provide secular benefits to same-sex couples, doesn’t that undermine CSS’s argument that it needs an exemption for its religious beliefs in order to participate in Philadelphia’s foster-care program?
The likely reason the advocates for the city chose not to advance arguments of this sort is because they were doing everything they could to frame the case as a dispute between the city and one of its many contractors, rather than as an existential battle between religious freedom and the rights of LGBTQ+ citizens and families. The city and its allies, on whose behalf the brilliant appellate lawyers Neal Kumar Katyal and Jeffrey Fisher argued, urged the justices to decide the case without wading into the deepest of constitutional waters. To have introduced the pope’s words would have underscored how fractured the worldwide Catholic Church remains on issues of sexuality and gender. It also would have implicated the long-standing, honorable tradition that U.S. courts refuse on constitutional grounds to be drawn into religious communities’ internal doctrinal disputes.
And so Katyal and Fisher smartly kept the focus on CSS’s status as a city contractor, even at the expense of being able to remind the justices that CSS’s position is out of step with the majority of U.S. Catholics, even larger majorities in other Western countries, and perhaps the pope himself. (Disclosure: In addition to the amicus brief from the lay Catholic group I referenced above, a different amicus brief that New Ways Ministry joined also laid out these facts, introducing the justices to the many Catholic heroes who have worked and are continuing to work for the full legal and religious dignity of LGBTQ+ individuals.)
Much more can and will be said about yesterday’s arguments in Fulton. The justices debated whether the law should regard sexual orientation discrimination analogously to racial discrimination. They seemed disinclined to overturn Employment Division v. Smith, the controversial precedent in this area that Justice Antonin Scalia established back in 1990. Newly-minted Justice Amy Coney Barrett asked her first questions in a case about religion, seemingly signaling a desire to uphold Smith but find for CSS on narrower factual grounds. Justice Barrett also offered a jarring hypothetical—about whether a city could force Catholic hospitals to perform abortions—that suggested the topic occupies her mind.
It will likely be months before we learn the Court’s judgment in Fulton and what it means for this country’s ongoing disputes about religious freedom and discrimination. But for all yesterday’s legal drama, the pope was not a player.
—Patrick Hornbeck, Fordham University, November 5, 2020
November 4, 2020: “Fulton Case Before SCOTUS Could Be “Crushing Blow” to LGBTQ Rights”
New Ways Ministry’s webinar, “The Supreme Court and LGBTQ Issues: What Catholics Need to Know in 2020,” featuring Dr. Leslie Griffin, is available as a Zoom recording by clicking here.