Contributing editor Russell Shaw looks at the recent Supreme Court decision that makes “gay” and…
Supreme Court hears arguments in foster care case with major religious freedom implications
Some time in the early months of 2021, the Supreme Court will announce its decision in a closely watched case involving a critical clash of rights — the constitutionally guaranteed right of religious free exercise on the one hand and government-backed LGBT rights on the other. The outcome could provide a significant legal precedent in similar conflicts for years to come.
It will also go a long way to determining whether, as has frequently been said, the addition of newly confirmed Justice Amy Coney Barrett to the Supreme Court gives that body a clear six-member conservative majority, or whether, as others suspect, the ideological makeup of the court, even with Barrett on board, remains a good deal more fluid and harder to characterize than that.
As presently constituted, the court clearly has a three-member liberal minority made up of Justices Stephen Breyer, Sonia Sotomayor and Elena Kagan. The six conservatives are said to be Chief Justice John Roberts and Justices Clarence Thomas, Samuel Alito, Neil Gorsuch, Brett Kavanaugh and, now, Barrett.
But this ideological analysis starts to look simplistic in light of the fact that, in the court’s 2019-20 term, Roberts emerged as the court’s swing voter, sometimes voting with the conservatives and sometimes with the liberals, while Gorsuch authored a majority opinion strongly affirming LGBT rights.
On Wednesday, the day after Election Day, the justices heard oral arguments in the case Fulton v. City of Philadelphia. Catholic Social Services of the Archdiocese of Philadelphia is contesting a ruling by the 3rd Circuit U.S. Court of Appeals upholding the city’s action in forcing the Catholic agency out of foster care field because of its policy against placing children with same-sex couples. The agency had been involved in foster care for more than a century and, at the time of the city’s action, was responsible for 120 foster children.
In approaching the Supreme Court, Catholic Social Services maintains that the city’s action — and the 3rd Circuit Court’s ruling upholding it — violates both the free exercise clause and the establishment clause of the First Amendment, as well as free speech. It also pointed to the national implications of the case.
“Here and in cities across the country, religious foster and adoptions agencies have repeatedly been forced to close their doors, and many more are under threat. These questions [about the constitutional rights of church-related agencies like itself] are unavoidable; they raise issues of great consequence for children and families nationwide, and the problem will only continue to grow until these questions are resolved by this court.”
Not surprisingly, the case has attracted numerous friend-of-the-court briefs, including ones from non-Catholic religious groups that see it as involving issues relevant to their own interest. So, for example, a brief by an array of groups including a Muslim organization, a Sikh organization, an Anabaptist Christian community and a Hindu society says religious minorities now find themselves in a “difficult situation” in various places in the country and stand in need of robust protection from courts under the First Amendment.
A brief by the U.S. Conference of Catholic Bishops and the Pennsylvania Catholic Conference also underlines the point that the issues at stake in the present dispute extend far beyond Philadelphia. “It raises the important question whether churches and other religious organizations can continue to provide critical human services, as organized communities of religious adherents have done for centuries, without surrendering their religious beliefs. … The conflicts at issue here are not unique to this case but similar to those playing out between Catholic apostolates and civil authorities across the country.”
As the Supreme Court heard oral arguments, the chairmen of three committees of the bishops’ conference took the unusual step of issuing a joint statement underlining the importance of the case from the perspective of the Church.
Deploring what they said was “government exclusion of Catholics from foster care because we engage in this ministry as Catholics,” they said, “We pray the court’s ruling will fulfill the First Amendment’s promise that religious believers may bring the full vitality of their faith to the public square, and will reject a hollowed-out pluralism that permits people of faith only to preach but not to practice.”
The statement was issued by Archbishop Thomas Wenski of Miami, chairman of USCCB’s Committee on Religious Liberty, Archbishop Paul Coakley of Oklahoma City, chairman of the Committee on Domestic Justice and Human Development, and Bishop David Konderla of Tulsa, Oklahoma, chairman of the Subcommittee for the Promotion and Defense of Marriage.
Prominent in the background of the Fulton case is a long-running controversy over an earlier Supreme Court ruling on religious free exercise that many religious groups would be pleased to see either revised or scrapped.
In that 1990 case, Employment Division v. Smith, the court ruled that government restrictions on the free exercise of religion are allowable if they apply equally to all groups, not just religious ones, and do not arise from covert hostility toward religion.
Critics of the Smith decision concede that some restrictions on free exercise are justified for the sake of a pressing public interest, such as protecting people’s health during an emergency like the coronavirus pandemic. But, having conceded that, the critics also point out that free exercise of religion is a right guaranteed by the First Amendment, and as such should enjoy more protection than, as one lawyer put it during a recent legal symposium, “summer concert attendance or the ability to enjoy a meal out.”
Russell Shaw is a contributing editor for Our Sunday Visitor.