LGBTQ people lost at the Supreme Court today–but it could have been much, much worse.
In a surprising result, all nine justices of the Court agreed that the City of Philadelphia violated the First Amendment rights of Catholic Social Services (CSS) by requiring that they allow same-sex couples to become foster parents.
But the majority opinion in Fulton v. Philadelphia, written by Chief Justice Roberts, was actually a narrow one, joined by three liberal and two conservative justices. It held that because Philadelphia had a process for exempting organizations from its general policy, it wrongly discriminated against CSS by not exempting them here. Yet the decision did not establish a broad right for religious organizations to violate non-discrimination laws, as many had feared it might.
Now, on one level, this result is deeply disappointing. It means that even though CSS receives taxpayer money, it still may turn gay people away at the door. It also means that other agencies can probably discriminate in other ways–in one high-profile case, an evangelical agency turned away a Catholic applicant because it didn’t deem her to be properly Christian.
But Fulton did not turn out to be the church-state apocalypse that many commentators (including me) had feared.
Christian conservatives brought the Fulton case in the hopes of overturning a 1990 Supreme Court precedent, Employment Division v. Smith, which held that a “neutral and generally applicable law” is usually constitutional even if it burdens religious liberty. Under that decision, even if a law sometimes burdens religious freedom–for example, a non-discrimination law that prohibits turning customers away because they are gay, or Black, or Muslim, or whatever–it is constitutional as long as it is generally applicable to everybody.
Conservatives have hated this decision–ironically, written by Justice Antonin Scalia–for 30 years. They urged the Court to overturn it, and replace it with a rule that, as Justice Neil Gorsuch wrote in his opinion, “a law that imposes a substantial burden on religious exercise can be sustained only if it is narrowly tailored to serve a compelling government interest.”
That would be an earthquake. The “narrowly tailored to serve a compelling government interest” standard, commonly known as “strict scrutiny,” would mean that almost no laws that burden religious exercise could survive. It would immediately invalidate any nondiscrimination laws that do not contain religious exemptions, for example, thus enabling any business or individual to discriminate against Black people, women, trans people, gay people–anyone, basically, as long as they proffer a religious reason to do so.
That is what was at stake in Fulton–and that’s why, even though today’s decision is a loss for LGBTQ equality, it is also a kind of a win. Because it wasn’t as bad a loss as it could have been.
Rather than overturn Smith, the majority opinion–again, joined by all three of the court’s liberal justices–simply found that Philadelphia’s decision to stop referring children to CSS was not a “generally applicable” law. On the contrary, the record showed that it was a targeted action taken against one particular agency.
Further, as in Masterpiece Cakeshop, another narrow decision on the clash between religious conservatism and LGBTQ equality, public officials hurt their case by saying stupid things on the record. Here, the Commissioner of the Department of Human Services held a meeting with the leadership of CSS and said, “things have changed since 100 years ago,” and “it would be great if we followed the teachings of Pope Francis, the voice of the Catholic Church.”
That is totally inappropriate. It is not the place of a public official to tell a religious organization how to interpret its own religion; that is outrageous. And those careless remarks doomed this case and hurt LGBTQ people. If the City of Philadelphia is enforcing a nondiscrimination law, that’s what it should do–not lecture Catholic Social Services about its interpretation of Catholic doctrine.
For these reasons, the Court’s majority held that it didn’t need to decide whether to keep Smith or junk it, because this decision is unconstitutional even if Smith is maintained. It’s not “generally applicable” to focus on one religious agency and tell them what their religion is supposed to be.
But don’t heave too deep a sigh of relief just yet, because if you read Fulton carefully, the writing is on the wall.
Justices Amy Coney Barrett and Brett Kavanaugh concurred in the majority opinion. But Justice Barrett also wrote separately that she, too, thinks Smith should be overturned–just not in this case. In other words, there are five votes on the Supreme Court for overturning Smith and ushering in a new era for church-state law. (Surprisingly, Justice Breyer concurred with part of that opinion, meaning there may be six votes instead of five.)
So it may just be a matter of time before a stronger case comes before the Court, and religious organizations and people are automatically exempted from any law that burdens their religious activity. And in their separate opinions, Justices Samuel Alito and Gorsuch continued their practice of staking out extremely hard-line positions far to the right of anything the Court has ever held on church-state separation.
Indeed, it is probably a disappointment to the theocrats who promoted Justices Barrett and Kavanaugh that they chose to follow a more judicially conservative path today, opting to decide this case on narrow grounds rather than overturn the entire table of church-state relations. (Interestingly, Justices Barrett and Kavanaugh also joined Justice Breyer’s decision to dismiss a challenge to Obamacare.)
For now, though, Fulton is as important for what it didn’t say as for what it did say. Contrary to the arguments of LGBTQ advocates, an adoption agency can take taxpayer money and still discriminate against gay people. But contrary to the arguments of religious conservatives, laws that apply equally to everyone are constitutional.