Fulton and the Necessity of a Limit on Free Exercise in Discrimination Cases
Emily Johnson | April 2021
The US Supreme Court Building in 2019
lya Somin, professor at George Mason University School of Law, summed up the role of the Supreme Court succinctly: “In a world of enormously powerful government, we need an independent check on its power to control our lives. Despite its flaws, the court often serves that role well.” Throughout history, the Court has evolved to become the protector of individual and minority rights when democratic processes fail to play an active role. Notably, the judiciary has an extensive history of defending the freedom of religion, often resulting in unpopular yet constitutionally valid decisions.
In contrast, the Court has been more reluctant to acknowledge the rights of LGBTQ Americans, resulting in a mixed record that has only begun to mostly favor LGBTQ individuals in recent decades, with its landmark decisions Romer v. Evans and Obergefell v. Hodges, among others.
At the heart of the intersection between religious freedom and LGBTQ rights lies Fulton v. City of Philadelphia, a case argued early last November and currently pending at the Supreme Court. Fulton poses three distinct questions regarding claims of free exercise and what is necessary to prove discrimination on the basis of religion. This case also opens the door for a reexamination of Employment Division v. Smith, a rare curtailment of the freedom of religion upholding an Oregon controlled substance law. In light of the facts in Fulton and the case’s potential impact on LGBTQ youth, I argue that principles of equality and human dignity demand the Court must rule in favor of the City of Philadelphia.
Facts of the Case
At its core, Fulton questions whether a Catholic foster care provider violated the City of Philadelphia’s anti-discrimination laws in its refusal to provide certain services to same-sex couples. In 2018, the city opened an investigation into the religious non-profit organization Catholic Social Services (CSS). Parties alleged CSS refused to certify same-sex couples who wanted to become foster parents, and, consequently, the city stopped referring foster children to the agency. Soon after, CSS filed a lawsuit against Philadelphia, claiming that their right to the free exercise of religion had been violated because their denial of services to same-sex couples was an expression of their religious beliefs. Philadelphia claimed that CSS violated its Fair Practices Ordinance, an order forbidding discrimination in public accomodations based on sexual orientation. Both the district court and the Third Circuit denied the agency’s claims, though the Supreme Court voted to grant certiorari in February of last year.
Smith: A Primer
While a multitude of precedent will inform the Supreme Court’s ruling, the case of Employment Division v. Smith serves as an incredibly relevant precedential guide.
Central to the Court’s upcoming decision in Fulton will be how it chooses to regard Smith. In 1990, the Rehnquist Court determined that a state can deny unemployment benefits to workers fired for illegal drug use even when the drugs are used for religious purposes. This came about when two employees of a private drug rehabilitation center were fired for using peyote (a hallucinogenic drug used in several Native American religious traditions), notwithstanding their claim that it was part of a religious ceremony with their Native American Church. Ultimately, a 6-3 majority ruled that the free exercise clause does not excuse an individual from complying with an otherwise valid law, meaning illegal drug use was not constitutionally protected under the First Amendment.
Whether or not Smith will stand in the Court’s consideration of Fulton depends on the Court’s evaluation of the City of Philadelphia’s nondiscrimination law. When a law is neutral and applies to secular and religious entities equally, there is no constitutional violation. Just as laws prohibiting illicit drug use apply neutrally to all citizens regardless of their religious beliefs, as decided in Smith, Philadelphia’s law preventing discrimination based on sexual orientation should be found to apply neutrally regardless of religious beliefs. The goal of the law is to eliminate discrimination, not to interfere with religious beliefs. Smith was decided correctly in 1990 and therefore demands a decision in favor of the city.
Effects on Children
In addition to the precedent of Smith, the Supreme Court should take into account the psychological consequences of allowing CSS to discriminate on the basis of sexual orientation. This would primarily impact LGBTQ youth, who would receive the message at a young age that same-sex couples are unfit to be parents. As highlighted in the amicus brief filed by Lambda Legal, a decision in favor of CSS would have significant harmful consequences. Notably, this type of government-contracted agency-based discrimination “would send a government-endorsed stigmatic message to LGBTQ youth that, because of who they are, they do not deserve dignity and equal protection under the law.” This consideration of psychology and children’s development coincides heavily with Justice Kennedy’s opinion in Obergefell.
Furthermore, regarding consequences to LGBTQ children, there is a direct correlation between Brown v. Board of Education and Fulton. In Brown, a unanimous Court ruled that separating children based on race “generates a feeling of inferiority as to their status in the community that may affect their hearts and minds in a way unlikely ever to be undone.” This feeling of inferiority affects children’s motivation to learn, mental health, and overall well-being. A similar argument applies to Fulton in terms of discrimination on the basis of sexual orientation rather than race. LGBTQ children experience a clear feeling of inferiority when they witness LGBTQ couples denied from becoming foster parents, which the Court must take into account when they decide Fulton. As Kennedy opined in Obergefell, “children suffer the stigma of knowing their families are somehow lesser.” We observe the potential for this feeling of inferiority and “second-class citizenship” in both Brown and Fulton.
Denying services to same-sex couples is not only beyond Catholic Social Services’ rights to the free exercise of religion, it is beyond their rights to the freedom of speech. Critics argue that the liberty of thought and speech of faith-based foster care organizations must be respected equally as the views of non-faith-based organizations. This is true, but there nonetheless exists a special contractual relationship between CSS and the government that prohibits CSS from promoting such disparaging speech. Specifically, because the City of Philadelphia hired CSS directly and independently, CSS’s participation in the foster care system amounts to a government-endorsed demeaning message to LGBTQ individuals. Garcetti v. Ceballos made clear that public employees can be disciplined for speech made in accordance with their official duties, meaning CSS’s speech should not fall under the category of protected speech. This is seen in how the actions and advertising efforts of CSS, through the flexible constitutional lens employed by Justice Harlan in Cohen v. California, could potentially be viewed as speech, thus bringing the present case under the precedential shadow of Garcetti.
In short, the precedent of both Employment Division v. Smith and Brown v. Board of Education must point the Court toward a ruling in favor of the City of Philadelphia. The Court must prove its function as an “independent check on [the government’s] power to control our lives” by upholding individual and minority rights. Fulton has the potential to reinforce this constitutional objective, ensuring equal treatment and a political community open to all citizens, regardless of sexual orientation.