alt=Kelsey DallasReligion’s win streak at the Supreme Court continued on Thursday when a unanimous court sided with a Catholic foster care agency in a case pitting religious freedom law against LGBTQ rights.
Justices said the government must offer religious exemptions when it’s willing to offer them for other purposes and can achieve its policy goals through other means.
Officials in Philadelphia violated this precedent by refusing to respect a faith-based objection to same-sex marriage, wrote Chief Justice John Roberts in the majority opinion.
Catholic Social Services “seeks only an accommodation that will allow it to continue serving the children of Philadelphia in a manner consistent with its religious beliefs; it does not seek to impose those beliefs on anyone else,” he wrote.
Five justices joined Roberts’ majority opinion, including the court’s three liberals. Three justices filed concurring opinions. There was no dissenting opinion in the case.
Justices Samuel Alito, Clarence Thomas and Neil Gorsuch, who did not join the majority opinion, described the case as a missed opportunity to overhaul and strengthen the court’s approach to the First Amendment.
“This case presents an important constitutional question that urgently calls out for review: whether this court’s governing interpretation of a bedrock constitutional right, the right to the free exercise of religion, is fundamentally wrong and should be corrected,” wrote Alito in his concurring opinion.
Religious freedom and LGBTQ rights
The Philadelphia case, which originated in 2018, centered on the religious exercise protections offered by the First Amendment.
Catholic Social Services and two of its foster moms, Sharonell Fulton and Toni Simms-Busch, claimed Philadelphia officials violated their religious freedom by refusing to partner with agencies that, for religious reasons, wouldn’t assess whether same-sex couples were suitable to adopt.
Philadelphia asserted that offering religious exemptions to its nondiscrimination rules would work against its goal of recruiting as many foster parents as possible.
Lower courts ruled in favor of the city, deciding its exclusion of some faith-based agencies did not violate the First Amendment. These rulings cited a 1990 Supreme Court ruling called Employment Division v. Smith, which said limits on religious rights are permissible if they stem from a neutral, generally applicable law.
The Supreme Court overturned these lower court rulings, stating that Philadelphia’s policy was not generally applicable since the city was willing to offer exemptions to nonreligious agencies. The ruling does not, as legal experts speculated it might, dramatically redefine how the Supreme Court applies the First Amendment.
Still, many conservative religious organizations and advocacy groups described the court’s decision as a major victory, praising the justices for protecting Catholic Social Services’ deeply held religious beliefs.
“This … ruling means that people of diverse convictions can still serve side by side for the good of vulnerable children in our communities. We can ensure a clear, dignified path for all who wish to foster or adopt, including LGBT+ individuals, while also ensuring that faith-inspired agencies and families can continue to serve without being forced to violate their religious beliefs,” said Jedd Medefind, president of the Christian Alliance for Orphans.
Kelly Shackelford, president and CEO of First Liberty Institute, a law firm focused on religious freedom issues, called the ruling a “tremendous victory for religious liberty.”
“Punishing religious organizations for acting consistently with their sincerely held religious beliefs is wrong. The court ensured that religious adoption providers can continue their centuries-old work serving families and children without suffering government discrimination,” he said in a statement.
Archbishop Nelson Perez, who leads the Catholic Archdiocese of Philadelphia, said the decision ensures that religious foster parents can continue partnership with the agencies best suited to serve their unique needs.
“Today’s ruling allows our ministries to continue serving those in need (and) foster families to find an agency that shares and reflects their faith,” he said during a press call hosted by the Becket Fund for Religious Liberty, which represented Catholic Social Services and the moms in the case.
Leaders from more liberal faith groups and LGBTQ rights advocates had a dimmer view of how the court’s decision could impact foster care services.
By ruling in favor of Catholic Social Services, the justices will make it harder for the “thousands of children stuck in the church of the foster care system” to find homes, said Katy Joseph, director of policy and advocacy for Interfaith Alliance, in a statement.
“The constitutional right to religious freedom protects the sanctity of personal belief. However, that freedom ends when the exercise of one’s faith would harm the rights or well-being of another. This decision vastly distorts our first freedom by allowing faith-based providers to needlessly restrict the pool of prospective foster and adoptive parents,” she said.
The Rev. Serene Jones, president of Union Theological Seminary, similarly decried the decision, but said she was relieved the court did not issue a broader decision that could have weakened LGBTQ anti-discrimination laws across the country.
“Let me be clear: God loves LGBTQ people. Anyone that says otherwise is fundamentally misunderstanding and warping our scripture,” she said.
Interpreting the First Amendment
Like Jones, leaders from the ACLU celebrated that the impact of the court’s ruling will be more limited than it could have been.
“We are relieved that the court did not recognize a license to discriminate based on religious beliefs,” said Leslie Cooper, deputy director of the organization’s LGTBQ & HIV Project, in a statement.
Catholic Social Services, as well as many of the organizations that filed Supreme Court briefs supporting its case, had asked the court to overturn Smith and make it harder for any government official to place limits on religious activities.
In the majority opinion, Roberts said the case did not call for such a sweeping resolution, since the city of Philadelphia clearly violated the legal test laid out in previous religious freedom rulings.
“The city has burdened the religious exercise of (Catholic Social Services) through policies that do not meet the requirement of being neutral and generally applicable,” he wrote.
Philadelphia’s anti-discrimination law is not generally applicable since it offers foster care agencies the option of requesting individual exemptions, Roberts added.
“The creation of a formal mechanism for granting exceptions renders a policy not generally applicable, regardless whether any exceptions have been given,” he said.
The Supreme Court’s decision brings needed clarity to the world of First Amendment litigation, said Lori Windham, senior counsel for Becket, during the Thursday press call.
The court “made it clear that when the government is going to cut corners and make exceptions for other people it can’t crack down on religious freedom,” she said.
Luke Goodrich, who is also senior counsel for Becket, took to Twitter to push back against claims that Thursday’s decision was “narrow.” He and other religious freedom advocates believe it’s now clear that Smith is “not long for this world.”
“There are at least five votes, likely six, to overrule it. It’s only a matter of time before the court restores even stronger protections for religious freedom,” Goodrich said.
If Smith were overturned, it would be easier for faith groups to win exemptions to LGBTQ anti-discrimination laws, as well as other policies, as the Deseret News reported earlier this month.
Thursday’s decision is the latest in a string of Supreme Court victories for religious groups. In the past year, justices repeatedly ruled for churches challenging state-level COVID-19 gathering restrictions. Before that, they sided with religious schools facing lawsuits from former employees and religious families seeking access to public scholarship funds.
In part because of concerns about the Supreme Court’s conservative majority and the justices’ approach to religious freedom, LGBTQ rights advocates on Thursday reiterated their calls for Congress to pass the Equality Act, which would broaden the scope of anti-discrimination law.
“Congress must now listen to an overwhelming majority of voters and pass the Equality Act to update our civil rights laws to ensure explicit protections from discrimination based on sexual orientation and gender identity, including in federally-funded programs,” said James Esseks, director of the ACLU’s LGBTQ & HIV Project, in a statement.
The Alliance for Lasting Liberty, a coalition of religious freedom and LGBTQ rights advocates that includes The Church of Jesus Christ of Latter-day Saints, is also calling on Congress to take action on anti-discrimination law in the months ahead.
However, they’d like to see policymakers pass the Fairness for All Act rather than the Equality Act, since they believe the former bill strengthens both religious and gay rights.
“We continue to call on Congress to pass comprehensive federal legislation that protects LGBT people and the free exercise of religion,” the alliance’s statement said.