Losing While Winning: Fulton v. Philadelphia

Jacob Kohlhaas

Today’s post is from guest blogger Jacob Kohlhaas, an associate professor of moral theology at Loras College, Dubuque, Iowa. Professor Kohlhaas has written on theology of family topics for U.S. Catholic and America magazines, and is the author of the upcoming Beyond Biology: Rethinking Parenthood in the Catholic Tradition (Georgetown University Press).

Last week, Catholic Social Services of Philadelphia (CSS) claimed a small victory for religious freedom in an unanimous Supreme Court decision upholding their right to continue publicly contracted work in adoption despite refusing to certify same-sex couples. But while the Catholic side of the argument won in court, there is reason to be concerned with how this modest victory for religious liberty actually came about, particularly as June 22nd to June 29th is “Religious Freedom Week” during which the USCCB is providing resources for prayer and advocacy.

In the decision itself, the court ruled that because the City of Philadelphia reserved a right for its own director to deny certification to households for any reason, the city’s non-discrimination policy was not universally enforced. In other words, if a city wants to maintain an ability to bend its own rules, it cannot enforce them on others who may also have reason to dissent. Because the ruling was narrowly concerned with the unique situation in Philadelphia, it has generated only modest media attention. It does not upend earlier court rulings in similar cases and no existing precedents were overturned as all judges agreed that this case did not fulfill the requirements of the current precedent.

As was made known in court, CSS’s refusal to certify same-sex couples was only theoretical. No same-sex couple has actually been denied. The agency did, however, clarify its policy that it would not certify a same-sex couple and would instead refer them to another provider. Interestingly, CSS saw no reason to contest the assertion that a same-sex couple may meet or exceed every criterion for certifying homes for potential adoption placements. The actual quality of the home for a potential child was not relevant to their religiously-grounded objection. Instead, CSS claimed that certifying the home of a same-sex couple as a suitable placement for a child would amount to an endorsement of the couple themselves, which CSS could not do.

This argument brings us to the central contradiction in present Catholic teaching on same-sex parenting. On the one hand, the Magisterium teaches that same-sex relationships should never be confused with marriages as they are in no way “similar or even remotely analogous to God’s plan for marriage and family.” The phrase first emerged in a 2003 document from the CDF, was repeated in Pope Francis’s 2016 exhortation, Amoris Laetitia, and repeated again in March in the CDF’s clarification banning the blessing of same-sex couples. Clearly, Catholic adoption agencies are prohibited by this teaching from treating same-sex couples as if they were heterosexual, married couples.

On the other hand, CSS could not point to any quality of same-sex households, aside from gender, that would eliminate them from consideration by their own certification standards. In other words, CSS had to hold that same-sex couples are “in no way analogous” to families founded in marriage despite their own admission that an actual examination of the conditions of the households likely would not yield consistent meaningful differences.

Two things cannot be both incomparable to one another and indecipherable from one another at the same time. Nonetheless this is the state of Catholic teaching on same-sex parenting at present which focuses on gender and ignores the actual conditions of relationships and households, let alone the actual tasks of parenting. The same problem is present in Pope Francis’s Amoris laetitia. In early chapters it insists on the importance of gender difference, but when it turns to the actual realities of parenting in latter chapters, it finds no opportunity to show how parental gender makes a meaningful difference in the everyday challenges of childrearing.

Consequently, CSS had to insist that it could not certify same-sex households because it could not endorse same-sex couples as couples. And they insisted on this position without any meaningful reason why the gender of the potential parents might matter for the quality of adoptive placements relative to a child’s wellbeing. Thankfully for their argument, the precedent cited in the Supreme Court’s decision states that, “religious beliefs need not be acceptable, logical, consistent, or comprehensible to others in order to merit First Amendment protection.”

Logical, comprehensible moral teaching is at stake when an unwillingness to reconsider specific teachings is insisted upon in contrast to available evidence. Catholicism is a faith tradition that holds a high view of human capabilities and prides itself on the intellectual depth of its teaching, especially in moral matters. This is why the present insistence on certain teachings contrary to evidence and contrary to publicly understandable arguments is so consequential. Since the time of arguments against the Gnostics in the early days of the church, the Catholic tradition has insisted on the open and reasonable nature of its religious commitments. Today, Catholic organizations are setting a dangerous precedent and doing significant harm to what remains of the Church’s public image by winning court cases on the back of an exception that excuses religiously held beliefs from rational argumentation.

As the bishops call our attention to religious freedom in the coming days, it is important to reflect on how and to what extent the public rhetoric of Catholics actually reflects our traditional values. While the current standards of religious freedom were upheld in the Catholic party’s recent Supreme Court victory, the case they presented revealed more evidence of Catholicism’s wavering commitment to reasonable arguments based in clear evidence when it comes to matters of sexuality and gender. Religious freedom must mean more for Catholics than requiring society to tolerate nonsensical and indefensible beliefs simply because they are religiously held. In contrast, active participation in public life through well-reasoned arguments based in religious convictions would require a different approach to this type of problem than Catholicism presently offers.

Jacob Kohlhaas, June 24, 2021

4 replies
  1. Loretta
    Loretta says:

    This incredibly insightful argument dramatically changes the discussion and I’m grateful for the author’s clarity. This is a keeper. Thank you!

  2. Steven Colburn
    Steven Colburn says:

    Thank you Prof. Kohlhaas for clarifying why this confusing case is and is not applicable to the moral and legal issues at hand in the complaint, your unfolding of why both are at stake here, your connection of the case to the faith traditions from which it arises, and the connection of this case to the interaction of current faith practices and civil law. As a lifelong Episcopalian, I understand all too well the intersections of faith, tradition, and reason on these matters, and appreciate your clear, concise thinking and writing in helping others better understand this case, in relation to their our lives and faith. In this month which celebrates pride in identity, with Juneteenth and Gay Pride, as well as celebrating the privilege of religious freedom that we all share, as God’s children in this place and time, may you continue to be a blessing to all who your words and life touch!

  3. Loras Michel
    Loras Michel says:

    So grateful Prof. Kohlhaas for your insightful discussion on religious freedom and the fundamental rights of loving gay parents to adopt children who need a protective and nurturing home to become all they can be. You presented a more comprehensive meaning of what true religious freedom is all about in relation to the real meaning of family which is not dependent on the sexuality and gender of the foster parents. Keep up this valuable insight into what is real and what really matters. A wake up call for church teachings which often reveal an unconscious existence to truth and beauty whose values it is called to serve.


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