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Analysis Law and Policy

John Roberts Has Waited a Long Time to Undermine LGBTQ Rights. Now He Has His Chance.

Jessica Mason Pieklo

The Supreme Court announced Monday it was taking a case that could write religious objections into the Constitution. The case could have "profound consequences" for children in foster care, an ACLU official said.

U.S. Supreme Court Chief Justice John Roberts issued a warning five years ago, when the Court affirmed the constitutional rights of same-sex couples to marry, recognizing that state-level efforts to deny marriage equality amounted to an attack on the constitutional dignity of LGBTQ people.

In his dissenting opinion, which he read from the bench, Roberts warned that Obergefell v. Hodges and the “dignity doctrine” announced in Justice Anthony Kennedy’s majority opinion would do little to squelch conservative attacks on LGBTQ rights. “Hard questions arise when people of faith exercise religion in ways that may be seen to conflict with the new right to same-sex marriage—when, for example, a religious college provides married student housing only to opposite-sex married couples, or a religious adoption agency declines to place children with same-sex married couples,” Roberts wrote in his dissent

On Monday, the Court made good on Roberts’ warning, announcing it would take up one those “hard questions” in Fulton v. City of Philadelphia, a case that seeks to create a right for faith-based child welfare agencies to discriminate in foster care and adoption placements based on the agency’s religious beliefs.

There are more than 400,000 children in the U.S. foster care system and more than 8,000 faith-based child placement agencies across the country. The case the Court is taking involves a fight between the City of Philadelphia and Catholic Social Services (CSS), an arm of the Archdiocese of Philadelphia. In March 2018, the Philadelphia Department of Human Services suspended foster care referrals to CSS after learning the agency had refused to place children with LGBTQ families and allegedly required potential families to provide a “pastoral reference” before they could be considered for placement.

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CSS filed a lawsuit in May 2018, arguing the city’s decision to suspend referrals was unconstitutional because it targeted CSS for its religious beliefs. Both the district court and the Third Circuit Court of Appeals rejected the CSS claims, saying that Philadelphia can require agencies that accept tax dollars to accept all qualified families.

In deciding to take Fulton, the Supreme Court will decide whether Kennedy’s “dignity doctrine” has any durability with Kennedy off the bench and replaced by Trump appointee Justice Brett Kavanaugh.

There’s plenty of reason for concern.

First is the reality that the Court’s conservative majority sees marriage equality as an imagined right. Here’s Roberts again in Obergefell: “Today’s decision, for example, creates serious questions about religious liberty. Many good and decent people oppose same-sex marriage as a tenet of faith, and their freedom to exercise religion is—unlike the right imagined by the majority—actually spelled out in the Constitution.”

Second is the way this case is framed before the Court. While Fulton involves a question of whether child welfare agencies can continue to receive taxpayer funding while refusing to abide by non-discrimination policies, the case’s potential reach is much larger.

CSS is effectively seeking to enshrine a constitutional right to impose religious criteria or religious tests in order to participate in government programs, the ACLU’s Leslie Cooper explained during a Monday briefing call. This argument is not limited to foster care and adoption placement and could apply to government services generally. And it could mean that religiously affiliated agencies like CSS could refuse service to LGBTQ children or children of different faiths.

“This case could have profound consequences for the more than 400,000 children in foster care across the country,” Cooper, deputy director of the ACLU LGBTQ & HIV Project, said in a statement. “We already have a severe shortage of foster families willing and able to open their hearts and homes to these children. Allowing foster care agencies to exclude qualified families based on religious requirements that have nothing to do with the ability to care for a child such as their sexual orientation or faith would make it even worse.”

Eleven states allow state-licensed child welfare agencies to refuse to place and provide services to children and families, including LGBTQ people and same-sex couples, if doing so would conflict with the agency’s religious beliefs. Twenty-four states and the District of Columbia expressly prohibit that kind of discrimination. A ruling on behalf of CSS would upend the protections offered in those 24 states and Washington, D.C.

Additionally, in November the Trump administration proposed a rule to immediately cease enforcement of nondiscrimination rules based on sexual orientation, gender identity, and, in some cases, sex or religion in U.S. Health and Human Services (HHS) grant programs.

HHS administers around $500 billion in grant funding for programs, including foster care. With this proposed change, the administration is removing existing nondiscrimination protection for beneficiaries and participants in scores of federal programs and explicitly allowing discrimination by providers, unless already prohibited by statute. A Supreme Court decision in favor of CSS in Fulton would mirror the administration’s efforts to roll back grantee protections as well. The Trump administration has already okayed a request from South Carolina officials to allow agencies to affirmatively discriminate on the basis of religion. The administration is also considering a similar request from Texas officials.

There’s also the request by CSS that the Roberts Court overturn the 1990 Supreme Court ruling Employment Division v. Smith. In Smith, the Court held that “the right of free exercise does not relieve an individual of the obligation to comply with a valid and neutral law of general applicability on the ground that the law proscribes (or prescribes) conduction that his religion prescribes (or proscribes).” In other words, a person’s right to exercise their religion does not excuse them from being held accountable for laws that apply to everyone equally, like the nondiscrimination requirements at issue now in Fulton.

Smith is a fascinating case. It involved two members of the Native American Church who were fired for ingesting peyote for sacramental purposes. They applied for unemployment benefits, but the state of Oregon rejected their claims on the ground that consumption of peyote was a crime. The Oregon Supreme Court agreed that the denial of benefits violated the free exercise clause, but the U.S. Supreme Court, with Justice Antonin Scalia writing for the majority, reversed the Oregon court’s ruling.

Scalia wrote that if the Oregon Supreme Court decision were allowed to stand, it would allow a person to object on religious grounds to the enforcement of a generally applicable law. If courts seriously entertained religious objections to generally applicable laws, like the minimum wage or civil rights protections, that “would open the prospect of constitutionally required religious exemptions from civic obligations of almost every conceivable kind.”

If the Court were to overrule Smith, it would be nearly the same as the Court affirmatively writing religious exemptions into the Constitution. Instead of balancing religious objections against the need to maintain an orderly society as described in Smith, cities and states would be required to accommodate nearly any objection raised by individuals and business to laws they don’t like. Everything from environmental protections to labor standards would be fair game for objections. Municipalities would have very little room to deny them.  The Court has been asked to overrule Smith before and has declined.

What’s changed? Nothing but time and distance from the Kavanaugh nomination fight, that’s what.

Given the Court’s schedule, arguments in Fulton v. City of Philadelphia likely won’t be heard until the start of the Court’s next term, in October. But before then, the Court will rule on a series of cases that ask whether Title VII of the Civil Rights Act of 1964 protects against discrimination on the basis of sexual orientation and gender identity. During oral arguments in those cases, conservative Justice Neil Gorsuch appeared sympathetic to claims that Title VII’s ban on discrimination “because of sex” includes sexual orientation and gender identity. This possibility has made conservatives apoplectic, since they believe civil rights laws offer no protections for LGBTQ people.

I remain skeptical that Gorsuch will side with the liberals and find that Title VII protects against claims of discrimination on the basis of sexual orientation and gender identity. But should he do so—and to be clear I think he should—then Fulton provides him with an opportunity to make it up to conservatives, so to speak. In Fulton, Gorsuch could side with CSS and his fellow conservatives in an opinion that goes beyond foster care placement and finds that the the free exercise clause of the First Amendment doesn’t require employers to comply with Title VII’s prohibition on sexual orientation and gender identity discrimination.

It’s a political, cynical reading of the Supreme Court tea leaves, but one that may turn out to be correct.

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