The U.S. Supreme Court heard oral arguments in Fulton v. City of Philadelphia on Wednesday, a case which hinges on whether religious institutions can be exempt from non-discrimination protections. In this case, the specific circumstances involve sexual orientation, but one Catholic legal scholar argues Fulton could open the door for other types of discrimination, too.
Leslie Griffin, a law professor and expert in religious liberty issues, analyzed the Fulton hearings for The Verdict. (Griffin recently gave a presentation on the Supreme Court and LGBTQ issues sponsored by New Ways Ministry, which you can view here.)
Griffin explains the issue this way:
“The question is whether the Justices will see sexual orientation discrimination as similarly stigmatic to racial discrimination, or if they will think it is a good thing protected by religious freedom.”
The role of stigma in the case was raised by Justice Sonia Sotomayor who questioned whether there is a relationship between the government’s interest in stopping racial discrimination, and thus a person of color being stigmatized, and the case before the Court now. Also at issue, raised by some justices, was whether discrimination based on religion or disability should be permissible. Griffin explains:
“Questions about racial discrimination arose several times during the argument. Justice Elena Kagan asked if the compelling state interest test applied to racial discrimination, but not to other forms of discrimination, including gender and sexual orientation discrimination. The Solicitor General, arguing in support of Fulton, did not take a position on the other forms of discrimination, but did say the argument against racism was ‘super compelling.’
“Justice Amy Coney Barrett asked Fulton’s lawyer what would happen if an agency opposed to interracial marriage wanted to do business with the city, and refused to give foster children to interracial marriages. Lawyer Lori Halstead Windham replied that the Court would use the strict scrutiny it has always used for racial discrimination, and not allow the exemption.
“Justice Stephen Breyer asked the Solicitor General’s attorney Hashim Mooppan, who was arguing in support of Fulton, if he was saying ‘We should write an opinion which says discrimination on the basis of race constitutionally speaking is different from discrimination on the basis of gender, on the basis of religion, on the basis of nationality, on the basis of homosexuality. . . . Is that the opinion you want us to write?’ The SG’s answer was that ‘race is unique.'”
The prospect of religious belief being used to justify racial discrimination is not abstract; Griffin pointed out in an amicus brief for this case that religions have historically and, even today, discriminate based on race. But, she writes further:
“Fortunately the courts have repeatedly explained that racial discrimination is illegal, even when religions want to practice it. Religious organizations do not enjoy religious freedom to stigmatize people of color. We believe the same rule should apply to sexual orientation discrimination, which has long stigmatized LGBTQs wherever such discrimination occurs. The claimed religious need to discriminate against and stigmatize based on sexual orientation is no easier to defend than religiously motivated discrimination based on race. The believers can believe whatever they like and organize their affairs through discriminatory purposes, to be sure, but not when the government is paying and not when the public is impacted.”
Griffin notes the precedent of another Supreme Court case, Employment Division v. Smith, which she lauds for ensuring that laws “of general applicability” apply to everyone, including religious believers. But if Smith is overturned in Fulton, it could open a Pandora’s box of legally-justified discrimination:
“Smith protects us from a world in which, once Fulton gets its exception, other contractors get theirs. Fulton can discriminate on the basis of sexual orientation? And then someone else will want to favor one religion over others. Or one gender over another. And so forth. Some of the Justices pointed out all the kinds of discrimination that could occur once one type is allowed. Unfortunately, Fulton and others would like Smith overruled so that they get more religious freedom to discriminate with city funds as a contractor for the government.”
Justice Amy Coney Barrett seemed to suggest an exemption allowed to Fulton would not lead to racial discrimination, but Jeffrey L. Fisher, Child Advocate’s lawyer with Philadelphia explained why such a solution would not work: one exemption leads to all sorts of other exemptions.
Griffin also highlights the concern that ending the contract with Catholic Social Services hurts children up for foster care and adoption. Rightly, lawyers for Philadelphia cited studies that the opposite is true: more children find loving homes when non-discrimination protections are in place. Indeed, Griffin writes, “new studies suggest that more, not fewer, parents became available when religious agencies closed in Boston and elsewhere.”
Another Verdict commentary on Fulton tied the case to Pope Francis’ recent comments supporting civil unions for same-gender couples. Scholars David Kemp and Charles Binkley write:
“The reason the Pope’s acknowledgment of the dignity of gay and lesbian individuals, their rights to enter into civil unions and establish families, and the need for laws to protect those rights may seem revolutionary is merely that it is a departure from the contemporary rhetoric of some Roman Catholic Church officials. However, many believe that the Pope’s sentiments are most consistent with the larger tradition of the Roman Catholic Church and holy scripture. It is the voice of a loving shepherd who cares for his flock and strives to protect them.
“From whom does the Holy Father seek to protect God’s homosexual children? Rogue entities like CSS masquerading under the cloak of Christianity.”
For Kemp and Binkley, the City of Philadelphia’s non-discrimination protections for LGBTQ people are similar to the pope’s stated belief that same-gender couples need legal coverage. They continue, “If the Pope himself endorses legal protections for same-sex couples to be able to raise their families, CSS stands as an obstacle, not an instrument, of this vision.”
Kemp and Binkley then ask whether Pope Francis’ recent comments will affect Fulton, and determine that is unlikely (no reference was made in arguments to the pope). But, should justices take up the pope’s comments:
“[I]t could underscore a point made by the 27 lay Roman Catholics in their amicus brief—that by ruling for the petitioners in this case, the Court would unconstitutionally be resolving a ‘disputed church matter’ on which there is ‘active religious controversy’ within the Roman Catholic Church.
“Alternatively, the Vatican or a representative could demand that CSS drop the case because CSS’s position conflicts with Roman Catholic teachings as expressed by Pope Francis. Though implausible, this is the most ethically sound option.”
For their part, the U.S. Conference of Catholic Bishops issued a statement expressing their desire for the Court to “reject a hollowed-out pluralism that permits people of faith only to preach but not to practice.” The bishops’ conference, as well as at least two archdioceses, have filed amicus briefs of their own in this case, seeking to implement a right to discriminate, which could end up denying loving homes to vulnerable children.
But Kemp and Binkley have a response to these church leaders’ argument that caring for vulnerable children is part of Catholic tradition, while at the same time these leaders seek to discriminate:
“. . . [I]f we follow this reasoning, then the bishops must believe that it is better to leave orphans without a family at all than to provide them with same-sex parents. This result is contrary to both the tradition of prioritizing the welfare of orphans and Pope Francis’s acknowledgment of the moral legitimacy of same-sex couples’ families.
“Regardless of what the Court ultimately decides in this case, it exemplifies the hypocrisy of religious entities seeking permission to discriminate not based on the teachings of their religion, but the animus in their hearts.”
For all the legal complexities involved in this case, there is a basic truth that much of this comes down to stigma and animus, as The Verdict’s experts note. Like Griffin, I hope, too, that the Supreme Court will “rule against stigma” and preserve non-discrimination protections not only for LGBTQ people, but for many other marginalized groups, too.
—Robert Shine, New Ways Ministry, November 6, 2020