The unanimous Supreme Court decision in favor of Catholic Social Services, Fulton vs. City of Philadelphia, issued on June 17, like the Masterpiece Cakeshop decision in 2018, avoided decisively ruling against religious liberty in sexual orientation and gender identity (SOGI) cases, but gave religious defendants in these cases no protection. It might best be described as a “too hot to handle” decision. From a liberal/left perspective, religious defendants cannot be given protection from violating their religious precepts because their precepts are the source of the oppression SOGI laws are attempting to rectify.
Accordingly, positions taken by religious groups on Fulton followed their doctrines about homosexuality. Those holding to a straightforward reading of the Bible favored the CSS associated plaintiff, Sharonell Fulton, and an expansive doctrine of religious liberty. Those which have accepted homosexuality want religious liberty denied. It is remarkable that no one takes a religious liberty position contrary to their beliefs about homosexuality. It is certainly conceptually possible that homosexuality could be regarded as not sinful, but the religious liberty of those who believe it is should be protected. Yet no religious group took that position. Those religious groups supporting the City of Philadelphia invariably maintained that the religious liberty of traditional Christians should be confined to the four walls of the church, where it is not (now) contested. But it is being contested there, as this writer’s earlier articles on the drive against “conversion therapy” make clear. It is to be doubted that these groups will regard religious liberty as “ironclad” in churches (as the PCUSA brief did) if it is seriously contested in the United States.
One amicus brief was filed by the Episcopal Church, along with several conferences of the United Church of Christ, several Conservative and Reform Jewish organizations, Muslims for Progressive Values, and several long established pro-LGBT groups from mainline Protestantism. It incredibly denies that action against religious precepts impinges on religious belief and practice. It argues against overturning the Employment Division vs. Smith ruling (1990), which gives religious defendants no religious liberty protection unless their religion was specifically targeted. It could well be argued that SOGI laws do target religious belief and practice, but the brief maintains that:
CSS is not entitled to the exemption it seeks under any legal standard. As a threshold matter, CSS cannot show that Philadelphia is substantially burdening the free exercise of religion. Affirming the decision below will not impinge upon religious doctrine or practice. Religions and religious people will remain free to determine what and who satisfies the requisites for practice of their faith.
This is patently false. These religious groups, which do accept homosexuality and transgenderism, at least in the case of the Episcopal Church, after a long struggle, seem to be asking the state to say what legitimate religious doctrine and practice is. A similar claim was apparently made by the sponsors of the Equality Act, who maintain that the proposed law will not affect religious groups in their “core” doctrines and practices.
Declining to provide foster children to same-sex couples or unmarried opposite-sex couples can easily be justified by the sexual morality of most world religions, which hold sexual relations outside of marriage to be defiling and wrong. In the case of Roman Catholicism, one can easily cite the Catechism of the Catholic Church (para. 2357), appealing to Scripture as holding homosexuality to be a “grave depravity,” and then maintaining that it is “intrinsically disordered.” It also (para. 1868) goes on to say that complicity in sin is sin itself, as does Scripture itself.
Of course CSS’ work is substantially burdened if it must facilitate behavior against Catholic doctrine, which it clearly is doing if it provides children to families organized on either a “depraved” or “intrinsically disordered” basis. Another strange claim is that:
Particular religious perspectives may not be accorded special privileges or permitted to undermine neutral, generally applicable protections against discrimination in the provision of government contracted and funded social services.
The problem here is that everyone should be accorded the right of conscience from what they understand, by the precepts of their faith, to be sinful or evil. Apparently a “religious perspective” is not to be given freedom, since it is not “religious doctrine or practice.” But it would hard to find words stronger than those the Bible or the Catholic catechism use about homosexuality. Legislatures or courts cannot arbitrarily carve out an exception to the general right to religious freedom given in the First Amendment. No similarly strong or even suggestive language is used concerning race, so no Christian or Jew has a valid religious claim to racial discrimination.
The brief goes on the observe the diversity of religious views in America, especially on LGBT issues, which is of course no argument against the right of conscience everyone has not to violate their religious precepts. Indeed if a religious consensus is developing in favor of accepting LGBT behavior, that is a strong reason to protect dissenters.
TEC, the UCC conferences, and others claims there is a compelling state interest in preventing discrimination against LGBT identifying persons. If so (and leaving aside the irrationality of trying to protect a fluid category of persons) it is not being achieved in the least restrictive way, namely relying on the many agencies in Philadelphia that will supply children to LGBT identifying persons. The only remaining basis for denying conscience is a “dignity” argument, which regards any adverse judgment against homosexuality to be illegal. But this is really a claim of a right not to be offended, which is an impossible legal standard. In any case, dignity should not require conscience violation, it is contrary to the ordinary meaning of “free exercise” in the First Amendment, it’s author James Madison’s’ explication of the superiority of our allegiance to God above the state in the Memorial and Remonstrance, and offends a most basic moral sense.
Finally, the brief seems to say (p. 27) that religious minorities have rights that other Americans do not, a typical leftist version of religious freedom. But religious freedom is supposed to apply to everyone, Protestant fundamentalists, traditionalist Roman Catholics, and Orthodox Jews included.
Another brief, submitted by the Stated Clerk of the Presbyterian Church (U.S.A.), many of the same groups as the Episcopal brief, and a few others makes the basic appeal to “neutral, generally applicable law” (which in this case was not neutrally applied, with religious agencies only targeted for compliance, as was noted in the first article in this series). The brief claims that:
Our legal system distinguishes readily between the ironclad protections provided to religion in its own sphere and the different balances that society strikes in laws and obligations regulating interactions in the civil sphere.
This is a “freedom of worship” argument, consigning religious freedom to the four walls of a house of worship (unless, presumably, the issue is the religious rights of what is judged an oppressed minority, or a “progressive” viewpoint is being advanced). But the Constitution protects freedom of religion, which embraces all of life, including the public square. We may also wonder how “ironclad” freedom of worship is, given that last year the U.N. Special Rapporteur on Religion or Belief declared that everyone has a right to joint any religious group without discrimination against LGBT behavior, abortion, and with equality of sexes (e.g., no all male clergy). We may suspect that the groups signing on to the brief will bend when the time comes to attack the freedom of houses of worship. Nor is there really any “balance” in law and society on LGBT issues. The issue is always acceptance and even celebration of homosexuality and transgenderism as a matter of justice, and so the demand for acceptance always prevails (where it can). Further, any speech condemnatory of homosexuality, even in church, synagogue, mosque or other house of worship, private conservation, prayer, or exorcism may now be made illegal, as this writer’s earlier articles on the drive against “conversion therapy” make clear.
The brief from the United States Conference of Catholic Bishops argues that Catholic Social Service’s activity is a religious activity, not government work that was contracted out. It essentially holds that CSS is a licensee in foster care, and though regulated by the state:
“It cannot be that an activity, traditionally undertaken by religious groups for religious reasons, loses all religious liberty protections as soon as government encompasses it within a regulatory framework.”
The brief appeals to the Hosanna-Tabor decision (2012) to say that the fact that a church has a service open to the public, providing a public benefit, and regulated in some measure by the state, does not mean that it is a government function. It also appeals to Catholic Church’s long history of placing orphans in homes, and in that connection to the Bladensburg Cross case (American Legion v. American Humanist Association (2019)) which said that in church/state matters courts must take into account “historical practices and understandings.” Thus CSS’s foster care is a religious function. With respect to the care for widows and orphans in ancient times and in American history, it says this is rooted in the Bible and church history:
“Although this ministry also serves the common good, and is often carried out in cooperation with government, these considerations do not reduce this ministry to a “public function” like picking up garbage or paving roads.”
Another brief, from the Roman Catholic Archdiocese of Milwaukee focuses on the need to overturn the Smith decision. It comments on success of Wisconsin vs. Yoder decision (1972), which the State of Wisconsin had contested, and which was based on the Sherbert vs. Verner decision (1963), which formulated the Sherbert test (i.e., law must serve a compelling state interest exercised in the least restrictive way if it burdens religious freedom). The archdiocese argues that Wisconsin’s experience with the Yoder decision shows that Smith was wrong and the Sherbert test is workable, even in a highly pluralistic society. This writer would add that it is certainly workable, but reasonable application that seriously applies the Sherbert test would result in many LGBT legal offensives failing, which were and are aimed at producing cases that are really public re-education campaigns. Similarly, Catholic Charities of the Diocese of Springfield, Ill., and the Diocese of Joliet focused on the benefit to society and the harm to children of closing Catholic Charities of Philadelphia’s foster care function.
The Southern Baptist Ethics and Religious Liberty Commission was part of a brief submitted by the Alliance Defending Freedom, the Family Research Council, and Focus on the Family. It focuses on the great social benefit of religious foster care. About 40% of CSS’ foster children find permanent homes, either by returning to their family of origin or by adoption. It says the City of Philadelphia recognized this, rated CSS highly, then withdrew CSS’ contract as a result of a news report, despite great need for foster parents. It notes that the Philadelphia Inquirer article that precipitated the controversy failed to say CSS made referrals. No one is turned away. This really goes further than Christians should, facilitating sin, but it does show that the City of Philadelphia doesn’t merely want LGBT identifying persons to have access to foster care, but to involve CSS in approving same-sex couples, thus making them violate the precepts of their faith. For refusing to violate the precepts of their faith, foster children of everyone who worked with CSS are threatened with removal from their foster homes. It observes the great need for fostering traumatized children:
One study showed that 75% of foster parents cared for physical-abused children, 66% cared for children who were sexually abused, and 61% had emotionally-disturbed children in their homes … States and localities need all the help they can get finding compassionate and high-quality foster homes for thousands of traumatized kids.”
Many people who care for foster children are religious. They are particularly dedicated. Practicing Christians are 50% more likely to be foster parents. Further:
“religious foster parents and providers are among the best of the best. No rational basis exists for the City of Philadelphia’s decision to turn them away in the face of a critical foster-parent shortage.”
“What the City of Philadelphia is telling these religious charities is that is no longer possible to remain true to their faith and work as community organizations.”
The Lutheran Church—Missouri Synod was joined by the Anglican Church in North America, the Union of Orthodox Jewish Congregations, Queens Federation of Churches, Christian Legal Society, Institutional Religious Freedom Alliance, Center for Public Justice, and World Vision in another brief to say that the Smith decision contradicts wording of the First Amendment; if religious activity is made illegal, free exercise is prohibited:
“In the eighteenth century, every colony found that free exercise required exempting dissenters from oaths, military service, and other requirements that burdened their religious practices. Those laws, although neutral and generally applicable, overrode conscience, caused psychological suffering and loss of liberty or property, inflamed social conflict, and discouraged people from settling or remaining in the colony.”
““Exercise” means actions or conduct, in the Founders’ time and now.”
“Smith converts a substantive liberty into an equality right. It protects an exercise of religion only if someone else is allowed to engage, for secular reasons, in activity that causes harms similar to those the religious exercise allegedly causes … [but] the Equal Protection Clause guarantees equal treatment; the Free Exercise Clause guarantees the right to engage in a particular class of activities.”
The brief then rehearses early modern and colonial American experience with religious persecution and the rise of liberty of conscience, providing religious exemptions for religious dissenters. It then says:
“Free exercise without exemptions causes the same problems today. It fails to avert the historic evils that religious liberty is meant to avert: coercion of conscience, suffering for one’s faith, and social conflict.”
And the brief quotes a very incisive comment from Associate Justice David Souter (1993):
“These are the modern equivalents of the harms that so troubled the Founders. ‘Neutral, generally applicable’ laws, drafted as they are from the perspective of the non-adherent, have the unavoidable potential of putting the believer to a choice between God and government.’”
And (returning to the text of the LCMS brief),
“It may be frustrating for those on either side in a social conflict to see governments, or other citizens, legally doing things that they deeply disapprove of. But it is far worse to be told that your own religious or intimate personal practices must conform to the other side’s preferences: that you must participate or assist or else surrender important activities of your own, such as helping neglected children. It is the difference between losing a political battle and being forced to surrender your own faith and identity.”
This brief was possibly the best for illustrating the American founders’ understanding of religious freedom and the failure of the current Employment Division vs. Smith regime to realize it.
The National Association of Evangelicals focused on the “original public meaning” of the First Amendment. Its very informative review of the early drafts of the First Amendment showed that they included references to liberty of conscience. Thus we can be confident the founders intended religious liberty to include liberty of conscience, in addition to the claim of James Madison (principal author of the First Amendment) that allegiance to God should be supreme over the state.
One of the most moving briefs was from the General Conference of Seventh-Day Adventists, who offered it with James and Gail Blais, Seventh-Day Adventists who were referred to in the first article in this series. They were denied a foster care license by the State of Washington pursuant to caring for their eight month old great granddaughter because they would not agree to a hypothetical situation in which she might want male hormones as a teenager, thus violating their religious convictions. This was deemed not sufficiently supportive of LGBT identifying youth. It says something about the fanaticism and power of the sexual revolution that not only were religious convictions not respected in this situation, but irreparable harm is insisted on as the rational and compassionate thing to do.
Other briefs from religious groups were offered, but the rule held firm that a group’s opinion of religious liberty was determined by whether or not it accepts the sexual revolution and its polyamory (or at least homosexuality), or maintains orthodox faith and thus condemns nonmarital and homosexual relations. In the former case, there can be no religious liberty for what is held to be a cruel idea (that homosexuality is sinful or evil). In the latter, a very straightforward and traditional commitment to religious liberty and the toleration of ideas that some citizens hate. As the brief of the LCMS, CLA, and others pointed out, in the first case, only a political loss can occur, the sexual revisionists can live their lives as they want. But for traditional religious believers, it is the destruction of their religious subculture, and life as a continually harassed and penalized underclass for those who continue to be faithful.
A final article will focus on some voices in the many briefs submitted which were not from religious groups, and which were less impassioned, appearing to seek a truly reasonable solution to the conflict over religious sexual morality, but seemed not to understand that reason, toleration, and social peace lie with the traditionalists, not those who seek to destroy them.
View Part 4 Here.