The major U.S. Supreme Court ruling in Fulton v. Philadelphia (.pdf here) allows a Catholic agency to avoid placing foster-care children with same-sex couples. Importantly, the Catholics will place gay children and will place children with gay singles since there’s no conscience crisis over defying the church’s doctrines on marriage.
For decades there’s been confusion and acrimony over the court’s applications of the Constitution’s ban on government “establishment of religion,” but now disputes over the religious “free exercise” clause grab the spotlight. The Fulton ruling sidestepped the heart of this generation’s conflagration between religious rights and LGBTQ+ rights and, thus, may even have added logs to the fire.
The justices backed the Catholic claim with what The Economist’s headline correctly labeled “The 3-3-3 Court.”
The narrow technical grounds for the decision enabled the three liberals (Stephen Breyer, Elena Kagan, Sonia Maria Sotomayor) to make the ruling unanimous. The conservatives were split between three demanding a thorough overhaul of “free exercise” law (Justice Samuel Alito, in a vigorous 77 pages, joined by Neil Gorsuch and Clarence Thomas) and three unwilling to take the plunge at this time (Chief Justice John Roberts and the two newest members, Brett Kavanaugh and Amy Coney Barrett).
Similar caution apparently underlies the court’s majority decision this week not to review transgender student Gavin Grimm’s victory against his Virginia school over bathroom access.
Journalists should prepare for more years of extensive — and expensive — politicking and litigation before the Supreme Court defines — or decides not to define — how First Amendment guarantees apply in 21st Century culture.
For those on the religion beat, it is easy to see that this case has hardened the related conflict among major denominations.
The liberal bloc filing in Fulton included “Mainline Protestant” leaders and agencies of the Episcopal Church, Evangelical Lutheran Church in America, United Church of Christ, American Baptist Churches and African-American Baptist bodies (represented by the Baptist Joint Committee for Religious Liberty), and unofficial caucuses within the Presbyterian Church (USA) and United Methodist Church, alongside Reform Judaism, Conservative Judaism and Unitarian Universalists.
The opposing traditionalist alliance encompasses four of the nation’s five largest denominations, the Roman Catholic Church, Southern Baptist Convention, Church of Jesus Christ of Latter-day Saint and the Church of God in Christ (an African-American Pentecostal body), along with a host of conservative and evangelical Protestant groups, Christian colleges and agencies targeted by the cultural Left, and Orthodox Judaism. (U.S. Islam shares their basic belief but has yet to officially join the fray.)
The liberal religious argument is nicely formulated in a brief (.pdf here) by New York attorney Jeffrey Trachtman (212-715-9175 and jtrachtman@kramerlevin.com) as follows: It’s a “false dichotomy’ to play LGBTQ equality against freedom of religion. Traditionalists “have every right” to beliefs “in their personal and religious lives.” But the “civil sphere” is different and religious agencies have no “free exercise” right to discriminate in public services under government contracts. Such a claim is “false and insulting” to millions in the “broad and growing religious support for LGBT equality.” The Baptist Joint Committee turns the tables (.pdf here), contending that governments’ non-discrimination policies advance religious liberty rather than restricting it.
GetReligion regulars know that The Guy always watches the thinking of Douglas Laycock of the University of Virginia Law School, who has long favored legalized gay marriage (contacts: 512-656-1789 and dlaycock@virginia.edu). With Fulton he filed a religion brief in tandem with Thomas Berg of the University of St. Thomas School of Law (651-962-4918 and tcberg@stthomas.edu). Their defense of near-absolute freedom of conscience (.pdf here) starts from John Locke in 1690 and what America’s founders intended, seen for instance in exempting Quakers from general laws on military service and courtroom oaths.
Like Alito, the two professors want to overturn the 1990 Employment Division v. Smith decision (by Antonin Scalia, of all people) that allows laws that burden religious activity so long as they are said to be neutral and generally applicable. Their brief argues this not only coerces consciences but worsens polarization in society. They believe only the proven “compelling interest” of government should outweigh religious freedom. And they insist protection of private belief is not enough because social activity — for instance providing care for needy foster children — is an essential part of religion.
Looking ahead, Baptist Joint Committee General Counsel Holly Hollman poses unresolved questions: Can any sincere belief by itself establish that government is burdening religious exercise? Is there a legal distinction between religious objection to gay marriage and, for instance, interreligious marriage? And does granting a religious exemption to a law depend on whether other service providers are easily available (as they readily were in Philadelphia and with Colorado officials’ persistent actions against a conservative Christian baker)?
FIRST IMAGE: Photo illustration from Rainbow Round Table News.
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