Can Philly and LGBTQs Still Win?


A unanimous opinion? Really?

Yes. In Fulton v. Philadelphia, LGBTQs lost to religion 9-0 in the Supreme Court of the United States. Chief Justice Roberts wrote the opinion of the Court. Justice Barrett concurred, joined by Kavanaugh and Breyer. Justice Alito concurred, joined by Thomas and Gorsuch. Justice Gorsuch concurred, joined by Thomas and Alito. Not one single Justice dissented in the whole case.

Is there anything pro-LGBTQ rights people can do about this decision in favor of Catholic Social Services’ [CSS] religious refusal to consider LGBTQ couples as foster parents, even though Philadelphia law says they should?

Neutral and Generally Applicable

Perhaps. Justice Alito has an answer to my question. I thought Alito might write the majority opinion of the Court, with a dissent by Sotomayor and Kagan, and perhaps Breyer. His 77-page concurrence is different from Chief Justice Roberts’ majority opinion, and shows the pro-religion decision he would have written.

Alito says about Roberts’ opinion:

This decision might as well be written on the dissolving paper sold in magic shops. The City has been adamant about pressuring CSS to give in, and if the City wants to get around today’s decision, it can simply eliminate the never-used exemption power. If it does that, then, voilà, today’s decision will vanish—and the parties will be back where they started. The City will claim that it is protected by Smith; CSS will argue that Smith should be overruled; the lower courts, bound by Smith, will reject that argument; and CSS will file a new petition in this Court challenging Smith. What is the point of going around in this circle? (emphasis added)

The point is to preserve Smith, the Free Exercise Clause case which wisely, as Professor Hamilton and I recently argued on this site, prevents harm. Smith says the Free Exercise Clause does not grant a religious exemption to laws that are neutral and generally applicable. The Court had an opportunity in this case to overrule Smith, and offer much more protection to religious exemptions from our laws that govern everyone. Its recent decisions in the COVID cases suggest it might want to do so. The concurrences suggest it is time for Smith to go.

But Roberts kept Smith alive.

How did he do that? We have all said a million times that Smith protects neutral laws of general applicability. Chief Justice Roberts said the Philadelphia law might be neutral, but it was not generally applicable. For that reason, it violated Smith, and the Court would give strict scrutiny to what Philadelphia had done. Giving this intense scrutiny to Philadelphia’s law, he said Smith did the job, so there was no need to overrule it.

Roberts concluded that section 3.21 of the City’s contract was not generally applicable. That section states:

Rejection of Referral. Provider shall not reject a child or family including, but not limited to, … prospective foster or adoptive parents, for Services based upon … their … sexual orientation … unless an exception is granted by the Commissioner or the Commissioner’s designee, in his/her sole discretion.” (emphasis added).

Read that part in bold, which talks about an exception. If the law allows an exception, it is not generally applicable. The Court held this even though Philadelphia said it had never made such an exception. If you want laws to be generally applicable, you should not allow them any exceptions. This is why Alito says Philadelphia “can simply eliminate the never-used exemption power” and win. Just erase that part in bold.

If Philly in the future has a “generally applicable non-discrimination requirement,” it should win under Smith. My own view is that enforcing the antidiscrimination laws is a compelling interest that should overcome future religious freedom claims. But there are quite a few Justices on this Court who disagree with me. Thomas, Alito, and Gorsuch would overrule Smith. Perhaps, in a different case, Barrett, Breyer, and Kavanaugh would consider overruling it. And all of them let religion trump antidiscrimination law in this case. For now, however, Smith is still the free exercise law of the land.

Free exercise? There’s a lot of history and citations about that clause in this opinion. No one cited one of my favorites,  Professor Ellis West, emeritus professor of political science at the University of Richmond, who in his book, The Free Exercise of Religion in America: Its Original Constitutional Meaning, concluded “it is highly unlikely that early Americans believed that the free exercise of religion entails a right to religion-based exemptions from civil laws that the government has a right to pass” (p. 305). The Court should keep that history in mind.

Is There Anything Else To Do?

I wrote an amicus brief in Fulton. Amici included many Catholics who defend LGBTQ rights and the antidiscrimination laws. My amici were Miguel H. Diaz, Ambassador to the Holy See, Retired; CHILD USA; Dignity USA; New Ways Ministry; Women’s Alliance for Theology, Ethics and Ritual; and the Women’s Ordination Conference. Ambassador Diaz explained, “There are no winners today from the decision in the Fulton vs. the City of Philadelphia case. But tragically, there are many losers, namely, the children awaiting adoption, numerous committed LGBTQ+ couples willing to foster and/or adopt, and adoption agencies connected to the Roman Catholic Church and other religious communities.”

A majority of Catholics would not agree with CSS’ actions in this case. Why not?

Do you remember “Error has no rights”? That was the teaching of the Roman Catholic Church until the Second Vatican Council met during the 1960s, after John F. Kennedy was elected the first Catholic president of the United States.

What does that sentence mean? Catholicism is the one true religion. Because of its truth, it must be the established religion of every nation. Something is wrong wherever it is not established. Church writers frequently used the words “thesis” and “hypothesis” to explain the problem. The thesis is that Catholicism must be the established religion in every state. The hypothesis is that sometimes it is not. The goal of Catholics is to change every hypothesis into a thesis. The thesis is good; the hypothesis is evil. Catholics in both the majority and the minority have a right to public worship, but non-Catholics do not have the same rights, because error has no rights. Only the truth does. Many Catholic writers believed the hypothesis was an evil that had to be tolerated, but that should be changed whenever possible. In the 1950s and 1960s, they frequently argued that Franco’s Spain was the thesis and the United States the hypothesis, meaning the U.S. had to change. You could complain about that goal, but you would be wrong, and your error has no rights.

This theory explains why many Americans were skeptical about a Catholic president when John F. Kennedy ran for the office in 1960. They worried that, if Catholics had power and a majority of voters were Catholic, they would change the hypothesis First Amendment into a thesis nation with an established Catholic power. That’s why Kennedy gave a lecture in Houston assuring Americans that he would not take orders from the pope.

No one today believes Kennedy really wanted to turn the United States into a Catholic nation. But many people did back then.

John Courtney Murray Changed That Teaching

A New York Jesuit priest, the brilliant and brave John Courtney Murray (1904-1967) helped persuade the church to change its teaching. He was frequently criticized, ridiculed, and silenced by other church members. In 1954, Rome ordered him to stop writing about church and state. As he explained in a letter,

All the books on Church and State and on allied topics have been cleared from my room, in symbol of retirement, which I expect to be permanent. When Frank Sheed returns, I shall cancel the agreement I had with him to edit and revise the articles on Church and State for a book. Fortunately, my gloomy prescience impelled me to refuse an invitation to give the Walgreen Lectures at the U. of Chicago. And all other practical measures will be taken to close the door on the past ten years, leaving all their mistakenesses to God.

Murray was specifically not invited to early sessions of the Second Vatican Council, a meeting of the world’s bishops that took place in Rome from 1962 to 1965. The bishops battled fiercely over what their documents should say. Murray was invited to a later session, carrying with him his understanding of religious freedom that he had learned by living in the United States.

Murray’s influence is evident in the Council’s Declaration on Religious Freedom, which was promulgated on December 7, 1965. With the Declaration, the church recognized that religious freedom was a human right, “the right of the person.” Every person, not just Catholics. The Declaration was often referred to as the “American schema,” or even “Murray’s schema,” because of the First Amendment’s influence on it. The late Ninth Circuit Judge John Noonan explained that the declaration “would not have come into existence without the American contribution and the experiment that began with Madison.”

Murray acknowledged that “the church [was] late” in protecting religious freedom because others had protected it first.

Some church members are also late on LGBTQ rights.  But not the majority of Catholics. Francis DeBernardo, Executive Director of New Ways Ministry, explained today his reaction to Fulton. “It is a terrible shame that Catholic agencies believe that they have achieved a victory when all they have achieved is a legal loophole that allows them to become further isolated from people in their own church.  Lay Catholics overwhelmingly support equality for LGBTQ people because every day they witness the goodness of their LGBTQ family members, neighbors, and friends.  It’s time for Catholic bishops to learn from the people in the pews about Jesus’ message to treat all people with respect and compassion.”

DeBernardo urges Catholics to tell their leaders to support gay rights. I hope the second Catholic President of the United States will do that too. And I hope Justice Alito was right in recognizing the legal way that Philadelphia and LGBTQs can still win, even though many Justices do not want them to. As Ambassador Diaz told me, “The work to overcome the great impasse that exists today between religious-based rights and other human rights must continue. Religion can be a force for good in society, but sadly, it can also be used, and even legally protected, to discriminate and oppress our neighbors. This Supreme Court decision will undoubtedly create a stumbling block for countless couples, but it will not end their resolve to mirror God’s love by welcoming children into their homes with boundless care and compassion.”

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