When the nation’s highest court issued a 9-0 decision last week upholding a Catholic social-service agency’s right to participate in Philadelphia’s foster care program, it provoked a mordant comment from Case Western law professor Jonathan Adler:
“Supreme Court rules UNANIMOUSLY against Philadelphia in Fulton religious liberty case; opinion by [Chief Justice] Roberts,” Adler tweeted. “So tell me again, who are the extremists?”
It was an apt comment. Throughout this case, Catholic Social Services and its supporters had been portrayed as the aggressors, hostile to gay and lesbian equality and outrageously demanding the right to be closed-minded and intolerant. By their unanimous verdict, the justices made clear just which side they thought had behaved outrageously. It wasn’t the church.
The litigation stemmed from a decision by the city of Philadelphia to ban CSS, an arm of the local archdiocese, from providing foster services for needy children. For more than 50 years, the Catholic agency had contracted with the city to provide such services. Officials had described it as “a point of light in the city’s foster care system.” But when a church spokesman said that, on religious grounds, it could not certify same-sex couples as foster parents, the city pulled the plug. It refused to renew the organization’s contract on the grounds that it was in violation of Philadelphia’s antidiscrimination rules.
CSS hadn’t actually discriminated against anyone. The church spokesman had been speaking theoretically. No same-sex couple had ever asked the Catholic agency for foster care certification; faced with such a request, it would have referred the couple to one of the 27 agencies in Philadelphia that do certify same-sex couples. Nevertheless, the city barred CSS from all further foster care work. More than that: Despite an acute shortage of foster homes, the city prohibited any child from being placed with foster parents previously vetted and certified by CSS.
In essence, officials ordered Catholic Social Services to disavow its religious beliefs or to end its exemplary foster care services. They refused to make any accommodation that would allow CSS to continue caring for children in need without violating church teaching. They insisted on rigid adherence to the law, even if that meant fewer caring homes for those children.
Progressive voices defended the city’s hard line. The Philadelphia Inquirer denounced Catholic Social Services for clinging to “a bigoted view that should not be rewarded with public funds.” The ACLU accused CSS of demanding “a license to discriminate against LGBTQ families” and derided its plea for an exemption as “legally baseless.”
To which a unanimous Supreme Court said: Wrong.
There are many issues on which the justices disagree. Yet time and again, they have put ideological differences aside to enforce the First Amendment’s command: Government may not impede the free exercise of religion absent a truly imperative reason to do so.
The modern court is a civil rights bulwark, and its support for LGBTQ equality has been cemented in such landmark decisions as Lawrence v. Texas, Obergefell v. Hodges, and, most recently, Bostock v. Clayton County. But the court has been equally clear that religious liberty is a paramount value under the Constitution. It is not subordinate to the state’s interest in upholding same-sex marriage. It may not be bulldozed aside when it’s at odds with a nondiscrimination policy. When such a conflict exists, government must seek a way to accommodate religion. The issue in Philadelphia, wrote the chief justice, “is not whether the City has a compelling interest in enforcing its non-discrimination policies generally, but whether it has such an interest in denying an exception to CSS.”
This is not the first time religious believers have been told that their views must bow to other government interests.
In the Hosanna-Tabor Church case in 2012, the interest in question was employment rights under the Americans with Disablities Act. In McCullen v. Coakley, it was the Massachusetts law mandating a “buffer zone” around abortion clinics. In Holt v. Hobbs, it was Arkansas’s interest in maintaining a strict dress code in prisons. In Little Sisters of the Poor v. Azar, it was the government’s requirement that employers subsidize contraception through employees’ health plans.
In each of these recent cases, the Supreme Court ruled unanimously against the officials who refused to adapt their policy to make room for First Amendment liberties. Now, in Fulton v. Philadelphia, it has done so once more.
On today’s culture-war battlefields, religious views that contradict prevailing secular dogma are often reviled as unenlightened fanaticism unworthy of legal protection. But on the Supreme Court, liberals and conservatives alike have a different view. The free exercise of religion goes to the bedrock of America’s constitutional system. The justices have been saying so with increasing frequency, and they don’t seem inclined to let up.