PERSPECTIVE: Supreme Court case goes beyond LGBTQ+ versus Catholic rights

First Five by the Freedom Forum Institute

Jun 24, 2021

DAVID CALLAWAY

Last week’s unanimous Supreme Court decision in Fulton v. City of Philadelphia was framed as a culture war flashpoint between religious freedom and LGTBQ+ civil rights.

In a context that is as sensitive as they come — providing children in need with safe and loving homes — the court ruled that Philadelphia violated the First Amendment rights of a religious foster care agency.

The court’s unanimous ruling in favor of the agency — and the likelihood that a contrary ruling would have led to the agency’s closure and fewer children placed in foster homes — suggests that viewing the case as pitting LGBTQ+ rights against religious liberty is too simplistic.

THE FULTON RULING

The Supreme Court’s reasoning relies on two key points: 1) Philadelphia’s nondiscrimination ordinance allows for exceptions on a case-by-case basis, so denying Catholic Social Services (CSS) would specifically limit one religious practice; and 2) Philadelphia’s foster care system is not a “public accommodation,” and thus not bound by the policy. Therefore, the justices ruled CSS should be granted an exemption, despite Philadelphia’s objection.

WHO ARE THE PLAYERS?

Catholic Social Services (CSS) has served as a religious nonprofit providing care for orphans and destitute children in Philadelphia since 1797. For many decades, faith-based organizations like CSS have contracted with the city to operate homes for foster children, including certifying prospective foster parents.

In 2016, the city council passed an ordinance prohibiting contractors like CSS from discriminating based on sexual orientation.

In 2017, Megan Paszko and her wife were surprised when they were turned away from a similar Philadelphia nonprofit after being told, “This organization has never placed a child with a same-sex couple.” While investigating the story, the Philadelphia Inquirer spoke with CSS, confirming that the organization would also turn away same-sex couples.

While the agency will certify LGBTQ+ singles, and refer LGBTQ+ couples to alternative agencies, CSS would decline to certify LGBTQ+ couples as foster parents. CSS, affiliated with the Catholic Archdiocese of Philadelphia, believes by church doctrine that same-sex couples are unmarried and certifies only couples it considers married. After an investigation, the city stopped referring foster children to CSS. CSS and foster parent Sharonell Fulton filed suit against Philadelphia, asking federal courts for an exemption to the non-discrimination policy.

WHAT WAS AT STAKE?

Same-sex couples rightfully seek to live in a society that does not discriminate based on sexual orientation or gender identification. But defending Philadelphia’s non-discrimination ordinance should not prevent a dialogue between LGBTQ+ supporters and religious institutions that honors the dignity of all parties. Supporters of CSS argue it is possible to both include and empower groups that have faced discrimination and allow religiously affiliated institutions to operate within the norms of their respective faiths.

Sixty years ago, many Americans — LGBTQ+, Catholic and otherwise — would have been surprised that either of these two groups could wield enough power or public acceptance to come before the Supreme Court and argue that the law, morality and history were on their side. But that is precisely what the First Amendment accomplishes — empowering all while singling out none and providing a pathway that allows us to live together despite deep differences.

HOW DOES THE FIRST AMENDMENT CREATE SPACE FOR ALL BELIEFS?

At its core, the right to religious freedom is a guarantee that all Americans can, for the most part, shape their lives according to their deepest beliefs. That value, best understood as freedom of conscience, has been instilled in American law and culture since our founding. It has enabled both Catholics and LGBTQ+ civil rights advocates to inspire empathy, overcome discrimination and ultimately secure protections from the Supreme Court.

Our disagreements need not pit one belief against another, and our differences should not be resolved by erasure. The latter framing breeds resentment, dismantles opportunities to find common ground and creates a less tolerant society.

The First Amendment is a framework that can help us navigate seemingly insurmountable disagreements about our deepest beliefs, regardless of what those beliefs are.

When we can do that, we foster a society that accepts differences and protects our own freedom to dissent. We ultimately strengthen our rights and create space to live with difference.

WHAT IS POSITIVE ABOUT THE OUTCOME?

In sum, CSS’s victory need not be seen as undermining our country’s progress on LGBTQ+ rights.

The decision, like Masterpiece Cakeshop before it, is based on narrow reasoning that applies only to the parties and particular facts involved and, in this case, leaves open the question of whether a situation where religious nonprofits are the sole option for prospective foster parents would be resolved differently. The majority opinion also indicates the court’s greater concern that no Philadelphians should be denied the opportunity to foster children, or to provide foster services, in accordance with their own beliefs.

Despite the ruling’s narrow scope and unanswered questions, this outcome demonstrates how the First Amendment challenges us, whenever possible, to accommodate the deepest beliefs of all Americans, especially when we disagree.

You can reach David Callaway at dcallaway@freedomforum.org.