Marginalized people dodged legal bullets yesterday, but all is not well
The Supreme Court handed down two decisions with the potential to be landmark. The justices punted on both, declining to rule on Constitutional principles. Advocates and court watchers everywhere are breathing sighs of relief that the majority-conservative court preserved the Affordable Care Act in a 7–2 ruling.
In a unanimous decision, the Court both dismayed and relieved LGBTQ people and allies by ruling that Catholic Social Services of Philadelphia may exclude LGBTQ people as foster and adoptive parents when executing a City contract that forbids such discrimination, in violation of a City ordinance that outlaws anti-LGBTQ discrimination.
How does allowing LGBTQ exclusion relieve advocates?
As a Vox headline proclaims over a detailed report by court watcher Ian Millhiser, a long-awaited showdown over religion and LGBTQ rights ends in a whimper. The decision could have been far worse, and most legal analysts expected it would be.
We see the Catholic Church in the U.S. hates us with a fierce and peculiar passion. Avoiding Philadelphia CSS is a rational response to institutional hatred, not a sound argument for continuing the hate
While the decision to let CSS exclude LGBTQ people was unanimous, only Justices Samuel Alito, Clarence Thomas, and Neil Gorsuch endorsed overturning Employment Division v. Smith, a 1990 precedent that requires religious institutions to follow “neutral laws of general applicability.”
Overturning Smith was the sweeping, intensely negative result LGBTQ advocates feared. Without Smith or something like it, we LGBTQ people would find ourselves subject to institutional religious persecution and discrimination with almost no hope of redress. National and state legislatures would be all but powerless to protect us.
REAP’s lawsuit to stop religious Title IX exemptions, for example, would be a non-starter. Colleges and universities would be able, without challenge, to continue persecuting and punishing students who discover they are LGBTQ or come out as LGBTQ while in school.
Civil rights jurisprudence would fundamentally change, and not just for LGBTQ people, as religious faith would be transformed into a sort of get-out-of-jail-free card for illegal civil behavior. That worst-case scenario did not happen yesterday, even though three justices agreed that it should.
Additionally, Justices Amy Coney Barrett and Brett (I really like beer, sexually assaulting girls, and torturing my gay roommate in college) Kavanaugh indicated they would overturn Smith if they could figure out a practical way to replace it. Frighteningly, a majority of justices WANT to overturn Smith, but since no federal cases are in the pipeline to facilitate that now, temporary sighs of relief really are in order.
Here’s how the Court decided for anti-LGBTQ discrimination without overturning Smith
Yesterday’s decision will barely apply outside Philadelphia. The high court ruled that since the City of Philadelphia contract allows for religious exemptions, the City should have granted one—as a matter of contract law. They further found that the City ordinance banning discrimination in “public accommodation” does not cover adoption services, which they ruled do not qualify as a public accommodation. The City disagrees on both points, but they could in theory rewrite their contract and ordinance to eliminate the loopholes the justices found.
If they do that, CSS will be locked out of its contract again and will have to file a new lawsuit, which would likely take years to reach the Supreme Court.
The unanimous Fulton decision is still awful. Here’s why.
Despite having set no Constitutional precedent, the nine unanimous justices still sent a powerful message to the American people: Excluding LGBTQ people from ordinary government-funded services is fine if religious faith is invoked. Headlines and news stories about this case are spreading “both sides” nonsense that mispresents what’s actually happening.
Most news outlets reporting on Fulton are repeating CSS claims that the agency merely wanted to continue work that it had been doing for centuries, that no gay couple had ever applied to it, and if one had, the couple would have been referred to another agency. Each of these claims is either false or materially misleading. Let’s look at why they and other widely reported claims don’t hold up or don’t make sense.
1. ) The Catholic Church has not been spending taxpayer funds for centuries
It may be true that some line of CSS institutional ancestors have been involved in caring for needy children for centuries, but it is categorically false that CSS has done so in the way it implies. CSS does not spend Church funds to care for children. Like all child services agencies, CSS relies almost completely on public funds for its operations budget. When CSS employees place children, they act as agents of the City of Philadelphia, both theoretically and practically. They serve no religious function.
Private adoption agencies largely stopped relying on religious funding by the mid-twentieth century, when the U.S. people began to expect the State to care for children as part of the social compact. A combination of state, local, and federal funds account for nearly all child placement services in the United States, regardless of whether agencies are nominally religious or secular. Churches do not pay for child services, taxpayers do, and CSS in Philadelphia is no exception.
Furthermore, CSS employees have no religious liberty interests at stake. As agents of the City executing a City contract, their private faith beliefs are immaterial to their jobs. They must not be allowed to decide for themselves how to spend City money. If they wish to act as government agents, they must follow the same rules as any other such agent, but they may still worship privately and publicly any way they please.
If some element of the Catholic Church in Philadelphia wishes to establish a privately funded agency supported by Church rather than State funds, they are free to do so, and the legal issues involved with discriminating against LGBTQ people would change materially. That has not happened and is not expected to happen.
2. ) Children’s best interests are not being respected
Philadelphia City Solicitor Diana Cortes said she’s “disappointed” with the Fulton ruling. “The Court has usurped the City’s judgment that a non-discrimination policy is in the best interests of the children in its care.”
Her point is well taken.
The children at the center of this case, contrary to a narrative floating around progressive social media, are not Church babies. They’re wards of the City of Philadelphia, and most of them are members of marginalized minorities. They need help from their community, and the people of Philadelphia expect the City to provide the best care possible, which means NOT handing over placement responsibilities to an organization that will exclude a significant pool of outstanding prospective parents. Children aren’t languishing in institutions because of a lack of contracting agencies, but because of a lack of adoptive parents.
LGBTQ people foster and adopt children at far higher rates than cis/straight people. Excluding us as prospective caregivers and parents hurts marginalized kids who need help.
3. ) Of course LGBTQ people don’t apply at CSS. We aren’t stupid.
CSS claim that LGBTQ people don’t approach them anyway, implying we therefore have no reason to make a legal fuss. That argument is laughably insulting. Excuse me while I clutch my pearls.
We queer folk see countless press reports about the Church conducting anti-LGBTQ witch hunts, about married gay employees purged from Catholic institutions, about high school students speaking up about LGBTQ equality threatened with last-minute denial of diplomas, about beloved lesbian lay leaders fired after decades of faithful service. We see U.S. dioceses refuse us funerals and burials in church cemeteries as they banish us from Church property. It’s no state secret that some Catholic child services agencies have shut down rather than associate with us.
We see the Catholic Church in the U.S. hates us with a fierce and peculiar passion. Avoiding Philadelphia CSS is a rational response to institutional hatred, not a sound argument for continuing the hate.
Fulton v. City of Philadelphia sets a dangerous precedent in public thinking
While the high court set no disastrous legal precedents, they reinforce rightwing-trending public discourse that is positioning religion as justification for ignoring common civil and human rights for members of marginalized minorities.
What a long way we’ve come since the Nixon Administration told Bob Jones University to shove its racist religious liberty arguments where the sun doesn’t shine. Back in the 70s and 80s, the idea that faith should exempt institutions from following generally applicable civil rights law wasn’t entertained as as serious possibility.
Here we are, almost two generations later, and the pendulum has swung in the opposite direction. Sadly, discourse on the left does not uniformly oppose religious exemptions to basic liberty; on the right, things are far worse. We must refocus religious liberty discourse on ensuring that religious people have the uncontested freedom to worship as they see fit. We must fiercely oppose allowing religious institutions to force beliefs on people or spend taxpayer money while flouting civil rights laws.
Too many people say that balance is hard to find. It isn’t, it’s simple. Stop letting religious institutions set themselves above the law.
This article originally appeared at Medium.com. Here is a link.