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Analysis: Understanding Fulton: The decision dodged a bullet

by Lisa Keen

The U.S. Supreme Court has ruled that the city of Philadelphia violated the First Amendment when it did not renew a contract with Catholic Social Services. Photo: Courtesy U.S. Supreme Court
The U.S. Supreme Court has ruled that the city of Philadelphia violated the First Amendment when it did not renew a contract with Catholic Social Services. Photo: Courtesy U.S. Supreme Court   

Some legal observers viewed the recent U.S. Supreme Court decision in Fulton v. City of Philadelphia as a "significant" victory for LGBTQs while others saw it as another sign of "death by a thousand cuts" for queer equal rights. Others debated whether it was an "important win for religious liberty" or a "failure."

Reaction to the court's June 17 decision — allowing a Roman Catholic foster care agency to refuse to obey a city non-discrimination ordinance — elicited an unusually wide range of often-contradictory assessments.

One LGBTQ legal activist called it a "significant victory for LGBTQ people;" another called it "troubling." One conservative commentator called it a "resounding victory for religious freedom," while another lamented Fulton was a "failure by the high court to definitely end the ongoing governmental targeting of faith-based organizations."

The unanimous Fulton decision did not deliver a straightforward message as Obergefell v. Hodges did in 2015, when the court said, "same-sex couples may now exercise the fundamental right to marry in all states." It did not spell out clearly, as it did in Bostock v. Clayton County last year, that, "An employer who fires an individual merely for being gay or transgender defies the law."

Instead, Fulton carried a nuanced message, akin to that of the Masterpiece Cakeshop v. Colorado decision in 2018. In Masterpiece, the court ruled: "the laws and the Constitution can, and in some instances must, protect [LGBTQ people] in the exercise of their civil rights. ... At the same time, the religious and philosophical objections to gay marriage are protected views and in some instances protected forms of expression."

In Fulton, it said: "We do not doubt that [the city's] interest [in the equal treatment of prospective foster parents] is a weighty one, for [quoting from Masterpiece] 'our society has come to the recognition that gay persons and gay couples cannot be treated as social outcasts or as inferior in dignity and worth.' On the facts of this case, however, this interest cannot justify denying [Catholic Social Services, or CSS] an exception for its religious exercise."

"CSS seeks only an accommodation that will allow it to continue serving the children of Philadelphia in a manner consistent with its religious beliefs," wrote Chief Justice John Roberts. "It does not seek to impose those beliefs on anyone else." Joining Roberts in the opinion were the three more liberal members of the court — Justices Stephen Breyer, Sonia Sotomayor, and Elena Kagan — and two of the court's newest conservatives — Justices Brett Kavanaugh and Amy Coney Barrett.

The remaining three conservative justices — Justices Clarence Thomas, Samuel Alito, and Neil Gorsuch — concurred in the judgment (that Philadelphia owed CSS an exception to its non-discrimination policy protecting LGBTQ people). But Alito and Gorsuch wrote their own concurring opinions, indicating they would have gone much further in ruling for CSS. And Thomas joined both.

The facts of the Fulton case are these: The city of Philadelphia has an ordinance prohibiting discrimination based on sexual orientation and its contracts with outside organizations include similar language. City officials discovered that one of the private agencies to which it refers children in need of foster homes — CSS — had a policy of denying such placements to same-sex couples. When CSS's contract with the city came up for renewal, the city declined to renew it, saying CSS was in violation of the city ordinance and the contract's language. CSS sued, saying the city's refusal to renew its contract violated its First Amendment free exercise right. Besides, said CSS, it never violated the law because no same-sex couples had ever come to the agency and, if they had, CSS would have gladly referred them to some other foster care agency.

Finding escape clauses
Writing for the court, Roberts accepted CSS' contention that, by certifying a family for potential foster care placements, it was making an "endorsement of their relationships."

"CSS does not object to certifying gay or lesbian individuals as single foster parents or to placing gay and lesbian children," wrote Roberts, noting that no same-sex couple had ever gone to CSS seeking to be certified. And he reiterated CSS' contention that, if a same-sex couple had gone to CSS, the Catholic agency would have directed the couple to an agency that does certify same-sex couples.

Jennifer Pizer, senior counsel and director of law and policy for Lambda Legal Defense and Education Fund, could not buy into that line of logic.

"Think about this in another area of law, like health care," Pizer said in a phone interview. "If a doctor announces prospectively that they intend to discriminate — that they will treat only people of this one race and not another race — that's a discrimination problem. And maybe people hear that doctor's message and don't go to that doctor. But that doesn't absolve that medical office. You wouldn't have a decision saying that, 'Lots of doctors in town are willing to treat Black people so Black people can just go somewhere elsewhere.' There has never been that kind of understanding of how civil rights laws are supposed to operate."

Pizer said the Fulton decision is "a lot like Masterpiece."

"In both cases, it seems there was a search through the record to find reasons to allow the religious claim to win," Pizer said.

In Masterpiece, that reason was a statement made by a member of the Colorado human rights commission during a hearing on a gay couple's complaint against a baker who refused to make them a wedding cake. The 7-2 Supreme Court majority said the commissioner's statement constituted "official expressions of hostility to religion" and that this hostility was "inconsistent with the First Amendment's guarantee that our laws be applied in a manner that is neutral toward religion." Because the baker's religious beliefs did not receive a neutral hearing, the Supreme Court invalidated the claims against the baker.

In Fulton, Roberts relied on a statement in the city's contract that allowed the city's commissioner of health to grant an "exemption" of non-discrimination policies if it was in the best interest of a child.

"It's not standard analysis," said Pizer. "The evidence in Fulton was that Philadelphia enforced the law in a religiously neutral way, and the fact that there was a theoretical possibility of allowing an exception doesn't usually defeat the whole process."

Roberts made two other arguments for his decision, too. One focused on the way Philadelphia's foster care system was set up: The city had custody of children in need of homes and asked its various foster care contractors to "certify" couples who could provide suitable homes. CSS said certification was tantamount to endorsement and claimed its religious beliefs were opposed to endorsing same-sex marriages. So, the city's insistence that CSS certify qualified same-sex couples "forced" CSS to choose between its religious beliefs and serving foster care children in Philadelphia. (The city had argued that CSS received $26 million per year for its services, "which is hardly something demonstrating religious hostility.")

Roberts' second argument was that foster care placement is not a "public accommodation." A public accommodation, he said, is one that provides a benefit to the "general public."

"Certification as a foster parent, by contrast, is not readily accessible to the public," wrote Roberts. "It involves a customized and selective assessment that bears little resemblance to staying in a hotel, eating at a restaurant, or riding a bus."

Paths of least resistance
What Roberts did not do was tackle a 1990 Supreme Court decision (Employment Division v. Smith) that conservatives, like Alito, hoped the court would overturn.

In Smith, the Supreme Court ruled that a state could deny unemployment benefits to a person fired for using illegal drugs as part of a religious ceremony. It said a state law denying benefits to employees fired for "misconduct" (illegal drug use) was generally applicable to all persons. As then-Justice Antonin Scalia, who wrote Smith, put it, society would be "courting anarchy" to allow "constitutionally required religious exemptions from civic obligations of almost every conceivable kind — ranging from compulsory military service to the payment of taxes, to health and safety regulation such as manslaughter and child neglect laws, compulsory vaccination laws, drug laws ... and laws providing for equality of opportunity for the races."

Roberts wrote in Fulton that, "This case falls outside Smith because the city has burdened the religious exercise of CSS through policies that do not meet the requirement of being neutral and generally applicable." Philadelphia's non-discrimination policies were not generally applicable, he said, because they included the possibility of gaining an exemption, and the city denied an exemption to CSS for its religious hostility to same-sex couples.

Arguing that Smith should be overturned, Alito said there was "confusion about the meaning of Smith's holding on exemptions from generally applicable laws." He said Smith was "wrongly decided," that Scalia's concern about "anarchy" was "not well founded," and that CSS' policy simply "expresses the idea that same-sex couples should not be foster parents. ..."

"Many people today find this idea not only objectionable but hurtful," wrote Alito. "Nevertheless, protecting against this form of harm is not an interest that can justify the abridgment of First Amendment rights ..."

"Many core religious beliefs are perceived as hateful by members of other religions or nonbelievers," wrote Alito. "Proclaiming that there is only one God is offensive to polytheists, and saying that there are many gods is anathema to Jews, Christians, and Muslims."

"While CSS' ideas about marriage are likely to be objectionable to same-sex couples," wrote Alito, "lumping those who hold traditional beliefs about marriage together with racial bigots is insulting to those who retain such beliefs." He then cited the Supreme Court's 2015 decision in Obergefell v. Hodges (striking down state bans on marriage for same-sex couples) and the Masterpiece decision. He wrote that the majority in Obergefell "refused to equate traditional beliefs about marriage ... with racism" and "promised" that religions could "continue to advocate with utmost, sincere conviction that, by divine precepts, same-sex marriage should not be condoned."

"An open society," wrote Alito, "can keep that promise while still respecting the 'dignity,' 'worth,' and fundamental equality of all members of the community."

Dodging bullets
James Essex, director of the national American Civil Liberties Union's LGBTQ & HIV Project, wrote in his analysis of the decision it's very important in Fulton that "the court did not rule (as the agency asked) that there is a constitutional right for government contractors such as the foster care agency to discriminate in their work for the city based on religious beliefs."

Fulton, he wrote, "means that governments can and should continue to enforce their non-discrimination laws in all contexts."

Essex noted that, since the Masterpiece decision, anti-LGBTQ activists have "tried to get courts to rule that businesses, health care providers, employers, and government contractors all have a constitutional right to discriminate because of their religious objection to LGBTQ people."

The ruling in Fulton, he wrote, represents the "second time that the [Supreme Court] has refused to do so ..."

Shannon Minter, legal director of the National Center for Lesbian Rights, stated in an email; exchange that one might even consider it the third time, noting that, in 2010, the Supreme Court, in Christian Legal Society v. Martinez, upheld a California college's policy banning discrimination based on sexual orientation in campus group membership. A Christian student group at a public law school in San Francisco had claimed a free exercise right to exclude LGBTQ students.

"Anti-LGBTQ groups have tried twice now (really three times, going back to the Christian Legal Society case of 2010) to get the Supreme Court to recognize a constitutionally compelled exemption to anti-discrimination law," stated Minter, "and the court has declined both (or all three) times. That is a significant victory for LGBTQ people."

"I am amazed we dodged this bullet again," Minter stated. "I am not sure how long we can keep dodging it, but for now, we live to fight again another day."

But Essex wrote, "any loss — even this narrow one — will be painful to the LGBTQ community, particularly in the wake of a record number of anti-LGBTQ bills moving in state legislatures this year."

The Human Rights Campaign recently stated that 2021 has become the worst year for anti-LGBTQ legislation in states, with 17 laws being enacted so far. The new laws range from anti-trans sports bans to religious refusal to anti-LGBTQ education to anti-trans medical care.

"The legal fight about whether, and in what context, the Constitution gives some people a right to discriminate is one of the most important legal issues for the LGBTQ community," wrote Essex. "It has consequences for how every single non-discrimination law and regulation operates and could allow all of the civil rights laws that our community struggled for decades to establish to be undermined and side-stepped and ultimately rendered close to irrelevant."

The conflict between religious-based hostility to LGBTQ people and laws prohibiting discrimination against LGBTQ people was neither resolved nor reduced by the Fulton decision.

While Philadelphia City Solicitor Diana Cortes said the city would work with the CSS, as the Supreme Court decision requires, she added, "The city will not waver from our commitment to ensuring equality for all Americans, including LGBTQ families." Some legal observers expect the city to eliminate the "exception" that the Supreme Court relied upon in ruling for CSS. That could potentially send the same case back to the Supreme Court again.

The Masterpiece Cakeshop could end up back at the Supreme Court again, too. On June 15, a Colorado district court judge in Denver ruled, in Scardina v. Masterpiece, that Masterpiece owner Jack Phillips violated the state human rights law when he refused to bake a "gender reveal" cake for a transgender customer's birthday, saying he had strong religious beliefs that a person cannot be transgender.

While Phillips is a "man of good faith religious convictions," ruled Judge A. Bruce Jones (appointed by then-Governor Bill Ritter, a Democrat), the state law prohibiting discrimination based on sexual orientation is a "neutral law of general applicability" that requires the baker not refuse service to a potential customer based on the customer's sexual orientation."

"The anti-discrimination laws," wrote Jones, "are intended to ensure that members of our society who have historically been treated unfairly ... are no longer treated as 'others.'"

Other cases
Numerous other cases around the country are also testing the issue of religious exercise versus non-discrimination laws. Many are challenging Trump administration regulations that sought to enable various health agencies, including foster care services, to claim religious beliefs to deny equal treatment to LGBTQ people. Some are challenging other Catholic foster care agencies. In Texas, for instance, a lesbian couple seeking to adopt unaccompanied refugee children applied to Catholic Charities in Fort Worth but were told they did not qualify because the couple did not "mirror the Holy Family."

As Gorsuch wrote at the end of his concurring opinion, disappointed that the majority had not struck down Smith, "These cases will keep coming until the court musters the fortitude to supply an answer."

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