The Supreme Court has agreed to consider an appeal from a Catholic foster agency refusing to recruit or certify same-sex couples as potential foster parents. The case, Fulton v. the City of Philadelphia, hyper-focusing on whether the “religious liberty” to discriminate supersedes the LGBTQ protections obligated within their government contracts
In 2018, a report from The Philadelphia Inquirer revealed that a local foster agency, Catholic Social Services, maintained an under-the-table policy against placing children with potential same-sex couples. In response, the city terminated their relationship with the agency for breach of contract — a decision supported by both a federal judge and a unanimous three-judge panel on the US Court of Appeals for the Third Circuit in Philadelphia.
On Monday, SCOTUS announced they will assess whether this decision violated the First Amendment’s protections for religious freedom and freedom of speech, considering whether their “sincere religious beliefs about marriage” were explicitly targeted by the government in their public contracts. In turn, the justices could overturn the Employment Division of Oregon vs. Smith, the 1990 ruling which declared special exemptions from the law cannot be made under the excuse of religious belief.
“This case could be the blockbuster of the court’s term because it asks the justices to revisit a landmark — and controversial — 1990 ruling about the interaction between religious liberty and neutral anti-discrimination laws,” argued Steve Vladeck, a SCOTUS analyst and professor of law at the University of Texas, who spoke with CNN. “For three decades, the court has held that neutral government laws that incidentally burden religious exercise are not unconstitutional. But if the court overturns that decision, it could have enormous consequences, especially for the applicability of anti-discrimination laws to LGBT individuals.”
To put it simply, whether it’s murder or discrimination, even God and his supposed children are not above the rule of law. This was even the view of the late Justice Antonin Scalia, a staunch conservative Christian who was fair in determining that such US law must be upheld with both general and neutral application, “so long as they did not target people because of their religion”. For the agency’s argument of targeted discrimination to hold weight, the city would have just violated this 1990 statute on religious neutrality.
This charge, however, was rejected by the Third Court of Appeals. “The city’s nondiscrimination policy is a neutral, generally applicable law, and the religious views of CSS do not entitle it to an exception from that policy,” wrote Judge Thomas L. Ambro. “It has failed to make a persuasive showing that the city targeted it for its religious beliefs, or is motivated by ill will against its religion, rather than sincere opposition to discrimination on the basis of sexual orientation.” Simply put, the agency was given the same secular treatment as any other foster care institution employed by Human Services.
To overturn this opinion, however, goes a dangerous step further where special exemptions can be made if the religious happen to disagree with the law. This alone will test the integrity of both Brett Kavanaugh and Neil Gorsuch, two of President Trump’s latest conservative-leaning justices, who will have to rule on whether anti-discrimination laws can be ignored by convenient claims of conscience. In other words, do you have the religious liberty to tyrannize over the individual? Even when employed under a government contract, where the state cannot enforce religious values upon its people?
If so, Kavanaugh and Gorsuch will have to somehow explain how the Free Exercise Clause of the constitution applies to the enforcing of public contracts, which would be unconstitutional if they’re allowing specific religious beliefs to be imposed upon citizens via the state. Such theocratic measures go against the very concept of claims of conscience, whether it’s foster parents who are gay, of an entirely different faith, even those who agree with the reigning religion. It doesn’t matter, it’s church and state playing favorites with the lives of children, parents and their own ability to live in disagreement, all the while their own discrimination is taxpayer-funded.
“This case could have profound consequences for the more than 400,000 children in foster care across the country,” argued Leslie Cooper, a lawyer with the American Civil Liberties Union. “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.”
It’s easy to see how Catholic Social Services, as one of thirty foster care agencies who annually renew their government contract, have both a moral and legal obligation to maintain liberty for all qualified families. As outlined by the city’s Fair Practices Ordinances preventing discrimination based on race, color, sexuality, and religion, no couple can be denied a child for their arbitrary characteristics, be they of gay or catholic character. “When agencies choose to accept taxpayer dollars to provide this critically important government service to children,” Cooper concludes, “the needs of children must come first.”
Thank you for reading. This article was published for TrigTent, a bipartisan media platform for political and social commentary. Bailey Steen is a journalist, editor, and designer from Australia. You can read their work on Medium and previous publications such as Janks Reviews and Newslogue.
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