Supreme Court conservatives may reset balance between LGBTQ rights and religious liberty

The pediment of the Supreme Court building
The pediment of the Supreme Court building.
(J. Scott Applewhite / Associated Press)

The Supreme Court is set to decide soon whether conservative Christians have a constitutional right to refuse to work with same-sex couples while participating in a city-funded foster care program that forbids such discrimination.

It is the latest and possibly most significant culture-wars clash between the 1st Amendment’s right to the free exercise of religion — which has been bolstered of late by the court’s conservatives — and the right to marriage equality that was upheld in a 5-4 liberal decision in 2015.

With the exception of Justices Clarence Thomas and Samuel A. Alito Jr., the court has shown no sign it will retreat from the principle of equal marriage rights for same-sex couples. And last year, Justice Neil M. Gorsuch wrote a 6-3 opinion joined by Chief Justice John G. Roberts Jr. that protected LGBTQ employees from workplace discrimination under the Civil Rights Act of 1964.

However, the justices have been willing to consider whether the Constitution provides special exemptions based on religion for the “many Americans who believe that marriage is a sacred institution between one man and one woman,” as Thomas wrote in October.


Now the challenge will be agreeing on who is entitled to such an exemption and the constitutional basis for it.

Three years ago, it was thought that conservative justices would find that basis in the freedom of speech and expression. Wedding photographers, florists and, most famously, a cake maker in Colorado argued it violated their free speech rights to be forced to “create expression” for the celebration of a same-sex marriage. They objected to state civil rights laws that required providing equal service to all customers, without regard to race, religion or sexual orientation.

But the free speech claim was shown to be confusing and uncertain. Did it apply to baking a very large cake or only to the message in the icing? And who else could invoke this exemption? An attorney told the court that while a cake maker’s work was expressive, an architect’s was not.

Justice Anthony M. Kennedy, a champion of both religious liberty and gay rights, wrote the court’s opinion in Masterpiece Cakeshop vs. Colorado Civil Rights Commission and found a way to rule narrowly for Jack Phillips, the cake maker, without setting a clear constitutional rule. He said one or two members of the state civil rights commission had displayed “impermissible hostility” toward the cake maker and his religious beliefs.

Three weeks later, Kennedy announced his retirement, leaving the issue unresolved.

Now the clash of rights is squarely posed by Catholic Social Services in Philadelphia, which sued after it was suspended from the city’s foster care program because it refused to consider same-sex couples. The Catholic Archdiocese of Philadelphia argues that its right to freely practice its faith outweighs the city’s authority to forbid discrimination by its contractors.

“This claim is far more extreme than in Masterpiece Cakeshop,” said David Cole, national legal director for the American Civil Liberties Union. “There, the baker argued that he could not be compelled to make a cake to celebrate a gay couple’s wedding. Here, by contrast, CSS is not compelled to do anything. They argue that they have a constitutional right to get millions of dollars from the city to perform a government function, but to do so while violating the terms of the contract.”


If the court were to uphold a religious right to discriminate in public programs, the ruling would have a significant nationwide impact. It could even shield public employees who refuse to work with same-sex couples. Thomas and Alito dissented in part when the court turned down an appeal from Kim Davis, the Kentucky county clerk who refused to issue marriage licenses to same-sex couples. They faulted the majority for “choosing to privilege a novel constitutional right” to same-sex marriages “over the religious liberty interests protected in the 1st Amendment.”

Mary Bonauto, the Boston-based lawyer who led the legal fight for same-sex marriage, said she would be alarmed by a broad ruling that endorses a right to discriminate based on religion. “If the court were to allow exemptions from laws that are supposed to apply to everyone and for the benefit of everyone in accessing goods and services, then there will be more discrimination against many people,” she said. “There is a real danger of widespread refusals that goes back to treating LGBTQ people and couples as second class.”

It could have a particularly strong impact on fostering. The Williams Institute at UCLA has shown that same-sex couples are seven times more likely to serve as foster parents or raise adopted children than heterosexual couples.

Those affected may not be limited to LGBTQ persons. Lawyers said Jews, Muslims or others could be excluded from public programs if sponsors were free to exclude others based on their religious beliefs.

But it is not certain that the court’s conservative majority will go that far. Rather, they could decide that the Catholic foster care agency was treated unfairly because of its religious beliefs. Like with the cake maker’s case, such a ruling could be narrow and limited.

Lawyers for the Philadelphia Archdiocese devoted much of its effort to portraying the city and its officials as rigid and intolerant. They said that for more than 200 years, the church has provided shelter and found homes for orphaned and neglected children. Since the city took control of the child welfare programs in the 1950s, Catholic Social Services has had an annual contract to recruit and screen families that will take in foster children. And because as many as 30 other agencies in Philadelphia are involved in foster care, same-sex couples who want to be foster parents will have other options, they said.

“CSS is making a modest request here, which is to step aside and be able to allow diverse religious agencies to serve the city of Philadelphia, as they have done successfully for many years,” attorney Lori Windham told the justices when Fulton vs. Philadelphia was argued Nov. 4, the morning after the presidential election. Windham works for Becket Fund for Religious Liberty, a public interest law firm that has represented many religious rights cases before the Supreme Court.

Alito echoed her theme. “Look, if we are honest about what’s really going on here, it’s not about ensuring that same-sex couples in Philadelphia have the opportunity to be foster parents. It’s the fact that the city can’t stand the message that Catholic Social Services and the Archdiocese are sending by continuing to adhere to the old-fashioned view about marriage,” he told an attorney for the city.

Justice Brett M. Kavanaugh said he too thought the city had gone “looking for a fight,” and was now taking an “absolutist and extreme position that ... would require us to go back on the promise of respect for religious believers.”

The case began in March 2018 when the Philadelphia Inquirer reported that Bethany Christian Services, one of the foster care agencies, had turned away a same-sex couple. The story reported that CSS also said it too would not work with same-sex couples.

When city officials inquired, Bethany Christian agreed to change its position, but the Catholic agency refused. CSS then filed a suit when the city said it would not renew its $17-million-a-year contract to screen and certify people to serve as foster parents.

A federal judge and U.S. 3rd Circuit Court of Appeals upheld Philadelphia’s decision. “The city stands on firm ground in requiring its contractors to abide by its nondiscrimination policies when administering public services,” the appeals court said.

But early last year, the Supreme Court voted to hear CSS’ claim that it is a violation of the 1st Amendment to “exclude a religious agency from the city’s foster care system” because it insists on abiding by “its sincere religious beliefs about marriage.”

In recent years, claims of religious liberty have been steady winners in the high court.

Sometimes, the court has said churches and their affiliates have a right to be treated the same as other groups when it comes to receiving tax money.

For example, the court ruled that a Lutheran church in Missouri was entitled to receive a grant to pay for a preschool playground, even though the state constitution had prohibited sending tax money to churches (in Trinity Lutheran Church vs. Comer).

Last year, the court by a 5-4 vote ruled that parents who send their children to a church school were entitled to a state tuition subsidy on the same basis as those in public schools (in Espinoza vs. Montana).

In other cases, the courts had said churches and religious people have a right to be treated differently. Last year, the court ruled for the Catholic Archdiocese of Los Angeles and said two of its elementary teachers who were fired may not sue for illegal discrimination under federal or state civil rights laws. In Our Lady of Guadalupe School vs. Morrissey-Berru, one teacher was dismissed shortly after she revealed she had breast cancer. In several rulings, the court has said employers may cite their religious beliefs as a basis for refusing to provide contraceptives to women employees as required under Obamacare, notably in Burwell vs. Hobby Lobby Stores.

The Philadelphia case combines both themes. CSS says it has an equal right to participate in the city’s foster care program and also a right not to comply with its nondiscrimination policy.

The final briefs were filed in mid-September, the same week Justice Ruth Bader Ginsburg died. When the case was heard in November, her seat had been filled by Justice Amy Coney Barrett.