With Justice Barrett’s appointment, many LGBTQ Americans and their families fear those gains are at risk. Indeed, opinions in each of those decisions explicitly called out concerns of religious liberty; Justice Clarence Thomas said in a 2015 dissent in Obergefell that the majority decision undermined religious liberty; and in the majority opinion in Bostock Justice Neil Gorsuch suggested that religious liberty questions could arise in future employment discrimination cases.
The oral argument in the case
, however, showed that Fulton v. City of Philadelphia
is far from simple. Its factual and legal complexities make it hard to predict the outcome — and also provide several levers the justices can use to reach a decision that does not squarely address the limits that religious liberty may place on non-discrimination, civil rights laws and marriage equality. Because the case is so complicated, it seems far more likely that the court will take a path allowing it to reach an outcome that does not undermine those rights, at least for now.
From a legal perspective, I heard several key questions that may determine the fate of the case.
Is the Philadelphia law one of “general applicability”?
The oral argument revealed disagreement as to whether the city’s prohibition on discrimination against LGBTQ persons was generally applicable, which means it applies across the board without exception and, thus, without targeting religious activity. In a 1990 decision written by Justice Antonin Scalia, Employment Division, Department of Human Resources of Oregon v. Smith
, the court held that Oregon could prohibit sacramental use of the hallucinogenic drug peyote because the law prohibiting the use of the drug was neutral and generally applicable, without any exceptions. So, no exemptions. In contrast, arguably there are some exceptions permitted to Philadelphia’s non-discrimination law for placing children.
The court grappled with this standard here because the city had created exceptions in the foster care context to other non-discrimination protections. For example, Philadelphia does permit the consideration of race or disability in determining whether to place a child with a family. But, as Justice Barrett noted
, “none of them are for the same-sex anti-discrimination requirement.” Moreover, the city contended that those exceptions apply only to the placement decision and not to the question of whether a couple should be able to serve as foster parents at all.
The ambiguity surrounding whether a law is generally applicable has led to criticism of Employment Division. Justice Barrett may well be called to overrule a decision authored by her mentor Scalia, for whom she clerked. Because Employment Division has been questioned, the court could use this case as a vehicle to end that approach.
Is CSS a government contractor, or is Philadelphia licensing the foster care activity?
To most, this distinction would not be important. But, in this context, it could determine the outcome and allow the court to avoid confronting the vexing intersection of religious liberties and marriage equality. Undisputedly, governments can create requirements for those who contract to provide governmental services. While government contractors do not lose their constitutional protections, those rights can be outweighed
by the government’s legitimate interests. This is because the city could simply perform the activity itself and create reasonable restrictions on its employees.
In contrast, if the city is licensing such activity, like licenses for barbers, then such restrictions must advance a compelling government interest if there is an impingement of religious freedoms. The justices seem split over how to characterize the relationship between CSS and the city in this case. Justice Sonia Sotomayor clearly views this as a contractual arrangement, stating, “It’s a lovely argument, but I’m having a very hard time accepting how, when the City sets forth a set of criteria, only these people can do this work for me. That’s not a license. That’s an employment contract.”
Justice Barrett asked if it was possible for “any entity to participate in the recruitment and certification of foster families without a contract from the City?” The city conceded that, no, they cannot. The implication of Justice Barrett’s question is that these contracts are effectively a license because, without a contract, a group cannot engage in providing foster care at all.
What could the impact of this decision be on other forms of non-discrimination protections?
The oral argument made clear that the justices are acutely aware of the implications for other forms of non-discrimination protection. Justices Stephen Breyer, Samuel Alito, Elena Kagan, Sotomayor and Barrett all asked questions based on the hypothetical of a foster care agency declining to work with interracial couples based on their religious beliefs. The petitioner Fulton argued that, under Supreme Court decisions, race is different and that no agency could do so. The United States federal government, supporting Fulton’s position, also suggested that racial discrimination is simply different.
Justice Kagan did not seem to accept that argument. She asked the United States, “If I understood you correctly, you said that it is a compelling state interest to eradicate racial discrimination, but it is not a compelling state interest to eradicate discrimination on the basis of sexual orientation.” She then pushed further asking, “Do you think it is a compelling state interest to want to eradicate discrimination against gays and lesbians?” Justice Breyer seemed incredulous that the petitioner and the United States were asking the court to write an opinion stating that racial discrimination is somehow different than discrimination on the basis of gender, religion, national origin, and sexual orientation.
Is there an issue here at all?
Some of the justices, such as Justices Breyer and Brett Kavanaugh, asked whether there is actually a problem in the case. CSS says it had never refused to work with a same-sex couple and would simply refer them to an agency that would work with them. In this manner, there would seem to be no harm to accommodating CSS’s religious views. Of course, Philadelphia argued that it should be able to act to prevent any such discrimination and should not have to wait for it to arise. And another agency, Bethany Christian Services, did actually refuse to work with
a same-sex couple, though Bethany later agreed to the non-discrimination principle
“Our faith calls us to work with vulnerable children and families and therefore, it is important that Christians remain in this space,” Bethany said in a statement. “To that end, while we will remain compliant with the law, we also remain committed to our Christian beliefs and core values.” Indeed, the Bethany concern triggered the review
that led CSS to inform
Philadelphia Commissioner of Human Services Cynthia Figueroa it would not work with same-sex couples.
The characterization of this case as being about LGBTQ rights versus religious liberties, therefore, is too simplistic. The justices carefully explored the nuances in the case and the potential collateral consequences of their decision.
Of course, two justices have already showed their hands on this issue. Justices Clarence Thomas, joined by Justice Samuel Alito, decried the impact
of marriage equality on religious liberties in a case involving Kim Davis, a Kentucky government employee who refused to issue marriage certificates to same-sex couples due to her religious convictions. If those justices thought that there should be a religious liberty exemption for an actual state employee, they may be willing to carve one out in the arguably easier case of a government contractor. And we likely will see how Justice Barrett views these issues.
Nevertheless, the complexity of this case suggests the Supreme Court will address the issue as narrowly as possible, doing its best to balance the interests in religious liberties and LGBTQ rights. We may not (yet) know Justice Barrett’s views on LGBTQ rights, and the case may be unsatisfying to those on both sides of the issues. And that may be the right outcome.