Today’s post is from guest contributor Patrick Hornbeck, who is a professor of theology at Fordham University and a rising fourth-year J.D. student in the School of Law. The opinions in this article are his alone. He can be reached on Twitter at @patrickhornbeck.
On Thursday, the U.S. Supreme Court handed down its long-expected decision in a case about whether the city of Philadelphia could enforce its antidiscrimination laws against Catholic Social Services (CSS), which has a city contract for foster-care services but also maintains a policy of refusing to place children with same-sex couples. The decision, which was in CSS’s favor, was narrow, but for those uneasy about religion’s place in American law, a light on the proverbial dashboard just turned yellow.
There are some important similarities between the Court’s decision in Fulton v. City of Philadelphia and the way the justices handled their last case presenting a conflict between LGBTQ+ rights and religious liberty, Masterpiece Cakeshop v. Colorado Civil Rights Commission. But the Court’s membership changed markedly between those two cases, and the likelihood has increased it will deliver more sweeping rulings in the future.
Both cases were decided by substantial majorities and on narrow grounds. In Masterpiece Cakeshop, the Court held that an evangelical baker suffered anti-religious animus from government officials who decided he discriminated against a same-sex couple when he refused to make their wedding cake. In Fulton, the justices decided that because the relevant Philadelphia law allowed for case-by-case exemptions, the city acted unconstitutionally when it denied an exemption for religious reasons.
Both cases presented one of the most contentious questions in the long-running saga of tension between some religious groups, on the one hand, and members and supporters of the LGBTQ+ community, on the other. When a religious person’s or group’s doctrine is that same-sex relationships, queer love, and the identity of trans people are not to be validated, when if ever, should the religious person or group be able to live out that doctrine in the public square?
If the Court said religious beliefs always merited exemptions from laws everyone has to follow, that would have given license to discriminate not only against LGBTQ+ folks but others too. If the Court said religious beliefs always had to yield, the interests of both dominant and minority traditions would have suffered. Consider, for example, France, where strict secularism makes it possible for the law to bar Muslim women from wearing head coverings in public spaces.
Let me be clear: LGBTQ+ folks and our supporters—and Catholics especially among them—have good reason to be disappointed in the outcome of Fulton. But remember, it was not the law but CSS’ interpretation of the church’s sexual ethics that led the agency to conclude it was duty-bound to discriminate against same-sex parents. The law has now enabled, but not forced, that conclusion. The underlying theological question remains open: whether Catholic social service agencies must apply the severest possible interpretation of the church’s moral teachings.
What we learned Thursday is that a majority of the justices either think the Supreme Court’s approach to religious freedom needs to be overhauled, or at least they are open to such an overhaul. The concurring opinion by Justice Samuel Alito, joined by Justices Neil Gorsuch and Clarence Thomas, employed no subtlety. Across more than 70 pages, Justice Alito lambasted his colleagues for not immediately overturning the controlling precedent—Employment Division v. Smith, a 1990 opinion by the late Justice Antonin Scalia which established the rule that religious people and institutions are not owed exemptions from neutral, generally applicable laws. Two more justices, Amy Coney Barrett and Brett Kavanaugh, weren’t willing to go that far but wrote that the arguments against Smith were better than those in favor of it. They signaled they preferred to wait until a case came along that afforded a better opportunity for the Court to wrestle with what should replace Smith.
So what does this mean for LGBTQ+ Catholics and those who love them? In the Archdiocese of Philadelphia and other dioceses with similar policies, Thursday’s decision will be an immediate occasion for pain. People who would be good parents will not have that opportunity to adopt or foster children, at least not under a Catholic aegis; many children who need homes may not get them. For those elsewhere, perhaps the best way to think about the Fulton decision is as a temporary reprieve. A majority of the Court has signaled where it plans to head when religious freedom runs up against claims to equal treatment for sexual and gender minorities. But it has not gone there–not yet.
Cases are now working their way through the judicial pipeline that will present the Court the opportunity to take more definitive action. If a majority in one of those future cases were to overrule Smith, it would represent a sea-change in the relationship of religious belief and secular law.
While Justices Barrett and Kavanaugh, along with Justice Stephen Breyer, are right to ask hard questions about what the law post-Smith should look like, it’s difficult to imagine that religious belief would not qualify people (and corporations, both for- and non-profit) for exemptions from more forms of legal obligation. Antidiscrimination laws are just one kind. What about labor laws, like occupational safety or even the minimum wage? What about conscientious objection by medical professionals? Maybe personal injury lawsuits, or even criminal statutes? These last examples may go too far for some: Justices Barrett and Kavanaugh implied they want a “more nuanced” rather than a categorical approach. But situations where religious teachings conflict with commitments to equality would likely be among the first to feel the consequences of a realignment.
Only time—and perhaps not much time—will tell what comes next. Apart from continuing to engage in the political processes that shape the Court’s composition, LGBTQ+ Catholics and others uncomfortable with the Court’s direction can remind religious leaders that they need not avail themselves of every liberty and every immunity the law makes available. Pope Francis has been clear that LGBTQ+ individuals and families deserve legal protections and that overly legalistic interpretations of Catholic ethics are not in keeping with the gospel, though pastorally sensitive ones are.
But the pope and a substantial number of U.S. Catholic bishops are not well aligned these days. With Fulton landing on the same day as the bishops voted whether to commission a document on Catholics in public life, specifically regarding the Eucharist and potential denials of it, there is real reason to worry many bishops will seize every opportunity the law gives them—whether the law be that of the church or the state.
—Patrick Hornbeck, June 19, 2021