It’s all about stigma. Philadelphia wants to enforce its laws against sexual orientation discrimination, while an agency that contracts with the city wants an exemption, rooted in free exercise of religion, so it does not have to give foster children to same-sex couples. The stigma of racial discrimination was raised at the argument before the Supreme Court in Fulton v. City of Philadelphia, which took place on November 4, 2020. The question is whether the Justices will see sexual orientation discrimination as similarly stigmatic to racial discrimination, or if they will think it is a good thing protected by religious freedom.
Justice Sonia Sotomayor mentioned the role of stigma in antidiscrimination laws. As she put it, the government has a compelling state interest in protecting against racial discrimination. The reason for a compelling state interest was “not merely that race was important but that the burden on the people who are rejected because of race is an interest that the state could seek to protect. That a rejection on the basis of race or any protected category creates a stigma on that person, and it’s a compelling state interest for the state to have an antidiscrimination law on the basis of protecting classes.” (emphasis added).
The compelling state interest question arose because Fulton examines the government’s approach to sexual orientation discrimination, which is illegal. Justice Anthony Kennedy wrote about the dignity of same-sex marriage in Obergefell v. Hodges: “There is dignity in the bond between two men or two women who seek to marry and in their autonomy to make such profound choices.” Discrimination on the basis of sexual orientation in the context of employment law is prohibited by Title VII. Philadelphia ended its contract with Catholic Social Services (CSS) because CSS refused to give foster children to same-sex couples. Philadelphia law protects against such discrimination, and should protect against the stigma of discrimination against LGBTQs, which they have long suffered.
Questions about racial discrimination arose several times during the argument. Justice Elena Kagan asked if the compelling state interest test applied to racial discrimination, but not to other forms of discrimination, including gender and sexual orientation discrimination. The Solicitor General, arguing in support of Fulton, did not take a position on the other forms of discrimination, but did say the argument against racism was “super compelling.”
Justice Amy Coney Barrett asked Fulton’s lawyer what would happen if an agency opposed to interracial marriage wanted to do business with the city, and refused to give foster children to interracial marriages. Lawyer Lori Halstead Windham replied that the Court would use the strict scrutiny it has always used for racial discrimination, and not allow the exemption.
Justice Stephen Breyer asked the Solicitor General’s attorney Hashim Mooppan, who was arguing in support of Fulton, if he was saying “We should write an opinion which says discrimination on the basis of race constitutionally speaking is different from discrimination on the basis of gender, on the basis of religion, on the basis of nationality, on the basis of homosexuality. . . . Is that the opinion you want us to write?” The SG’s answer was that “race is unique.”
Justice Sotomayor and others raised the question of what would happen if a contractor could discriminate, not only on the basis of sexual orientation, but if a different contractor wanted to exclude families from other religions or someone with a disability from consideration.
I wrote an amicus brief in this case supporting Philadelphia on behalf of Miguel H. Diaz, Ambassador to the Holy See, Retired; CHILD USA; Dignity USA; New Ways Ministry; the Women’s Alliance for Theology, Ethics and Ritual; and the Women’s Ordination Conference. Our brief explained that some religions long supported in the past and continue to support racial discrimination. Slaveholders invoked the Bible to support their activity, and much of society accepted the discrimination as a plan of God.
Fortunately the courts have repeatedly explained that racial discrimination is illegal, even when religions want to practice it. Religious organizations do not enjoy religious freedom to stigmatize people of color. We believe the same rule should apply to sexual orientation discrimination, which has long stigmatized LGBTQs wherever such discrimination occurs. The claimed religious need to discriminate against and stigmatize based on sexual orientation is no easier to defend than religiously motivated discrimination based on race. The believers can believe whatever they like and organize their affairs through discriminatory purposes, to be sure, but not when the government is paying and not when the public is impacted.
And that is the beauty of Employment Division v. Smith, the free exercise case that is at stake in Fulton. Smith says everyone has to obey neutral laws of general applicability, without religious exception, as the lower courts said Fulton should do here. Smith protects us from a world in which, once Fulton gets its exception, other contractors get theirs. Fulton can discriminate on the basis of sexual orientation? And then someone else will want to favor one religion over others. Or one gender over another. And so forth. Some of the Justices pointed out all the kinds of discrimination that could occur once one type is allowed. Unfortunately, Fulton and others would like Smith overruled so that they get more religious freedom to discriminate with city funds as a contractor for the government.
The litigants and Justices raised the worry that fewer children will be assigned to foster parents, and great harm is being done by keeping CSS out of the program. Neal Kumar Katyal, Philadelphia’s lawyer, explained that studies from around the country show that nondiscrimination programs “increase, not decrease” the number of people available to care for foster children because it opens them to people who had previously been excluded. And new studies suggest that more, not fewer, parents became available when religious agencies closed in Boston and elsewhere.
At the end, Jeffrey L. Fisher, Child Advocate’s lawyer with Philadelphia, addressed a question from Justice Barrett, who said the law would not really allow an exemption for racial discrimination. Mr. Fisher responded that in the context of this case there was no difference between gender and sexual orientation discrimination and racial discrimination in terms of exemption.
I wait to see what the Court will decide, and hope it will rule against stigma!