Chemerinsky: SCOTUS considers whether religious freedom also means freedom to discriminate

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U.S. Supreme Court

On Nov. 4, the U.S. Supreme Court again will face one of the country’s most divisive constitutional issues: Does the First Amendment’s protection of speech and religion provide a basis for violating laws that prohibit discrimination against gays and lesbians?

Fulton v. City of Philadelphia could provide a crucial signal both of a court that is skeptical of the constitutional protection of marriage equality and of a court prepared to greatly expand religious exemptions to general laws, including those forbidding discrimination.

What’s before the court?

The city of Philadelphia contracts with private social service agencies to help place children in foster homes. Private foster care agencies are “delegated” the power of the government in determining whether individuals satisfy the state law requirements for becoming foster parents. Every contract is explicit in prohibiting the agency from discriminating on the basis of race, sex, religion and sexual orientation.

Catholic Social Services long had participated in this aspect of the program, but in recent years has declined to do so because of the contractual requirement that it not discriminate based on sexual orientation. CSS says its religious beliefs prevent it from providing inspections or placing children with same-sex couples.

CSS challenged the nondiscrimination requirement as violating its First Amendment rights. The district court and the U.S. Court of Appeals for the 3rd Circuit rejected these arguments, and the Supreme Court granted review. There are both issues of free exercise of religion and free speech before the court.

As for the former, CSS says it impermissibly burdens its religious beliefs to keep it from contracting with the city unless it will place children with same-sex couples. The difficulty with this argument is that in 1990, in Employment Division, Department of Human Resources of Oregon v. Smith, the Supreme Court held that free exercise of religion does not provide a basis for an exemption from a general government law.

In an opinion by Justice Antonin Scalia, the court rejected a claim by Native Americans that they should be granted an exemption from a state law prohibiting consumption of peyote on account of their religious beliefs.

If Employment Division v. Smith is followed, CSS is unlikely to prevail in its free exercise claim. Philadelphia’s nondiscrimination requirements are generally applicable and were not motivated by a desire to interfere with religion. As a result, CSS has asked the court to reconsider and overrule Employment Division v. Smith.

Alternatively, CSS says Philadelphia’s anti-discrimination requirement violates freedom of speech. It argues that it is compelled to engage in speech and says in its brief: “Philadelphia requires private agencies, as a condition of providing foster care, to author a written document evaluating and endorsing same-sex and unmarried cohabitating relationships.”

By contrast, the city argues: “But nothing in state law or the FFCA contract requires CSS to endorse foster parents’ relationships. … In addition, the nondiscrimination requirement is a prohibition on conduct, not speech.”

The high stakes

Ultimately, the central question before the Supreme Court is whether religious beliefs provide an exemption from a government law prohibiting discrimination. This was the issue, albeit in a different context, in Masterpiece Cakeshop v. Colorado Civil Rights Commission in 2018. That case involved a baker who refused to design and bake a cake for a same-sex wedding in violation of a Colorado law that prohibited business establishments from discriminating based on sexual orientation.

That case, too, involved both claims of free exercise of religion and freedom of speech. The Supreme Court did not resolve these issues, instead finding that hostility to religion had been expressed in the Colorado Civil Rights Commission, which violated free exercise of religion.

But there are many cases raising the same issue involving florists, photographers and stationery stores that refuse to serve same-sex couples on account of the business owner’s religious beliefs. The issue also is sure to arise in light of the Supreme Court’s ruling in June in Bostock v. Clayton County, Georgia, which held that Title VII of the 1964 Civil Rights Act prohibits employment discrimination on the basis of sexual orientation or gender identity.

Justice Neil M. Gorsuch’s majority opinion expressly left open the issue of whether an employer’s religious beliefs provide a basis for discriminating against gay, lesbian or transgender individuals.

Lurking in the background of Fulton v. City of Philadelphia is the attitude of the current court with regard to marriage equality and more generally, protecting gays and lesbians from discrimination. Obergefell v. Hodges, in 2015, was a 5-4 decision striking down state laws prohibiting same-sex marriages.

Justice Anthony M. Kennedy wrote the majority opinion, joined by Justices Ruth Bader Ginsburg, Stephen G. Breyer, Sonia M. Sotomayor and Elena Kagan.

But without Justices Kennedy and Ginsburg, it is doubtful whether there would be five votes on the court for that result today. On Oct. 5, the court denied review in a case involving Kim Davis, a court clerk in Kentucky, who refused to issue wedding licenses to same-sex couples. The lower federal courts ruled against Davis’ claim that she had a right based on her religious beliefs to refuse to issue such licenses.

The same day, Justice Clarence Thomas, joined by Justice Samuel A. Alito Jr., wrote an opinion that lambasted the Supreme Court’s 2015 ruling establishing a constitutional right of marriage equality for gays and lesbians. He accused the court of “choosing to privilege a novel constitutional right over the religious liberty interests explicitly protected in the First Amendment.” He insisted that religious beliefs should provide a basis for discriminating against gays and lesbians.

Chief Justice John G. Roberts Jr. wrote a vehement dissent in Obergefell, the only dissent he has read from the bench since coming on the court in 2005. And in 2017, Justice Gorsuch wrote a dissenting opinion in Pavan v. Smith leaving no doubt that he thought Obergefell was wrongly decided.

New Justice Amy Coney Barrett, who likely will be on the bench for the argument in Fulton, has said that Justice Scalia’s “judicial philosophy is mine, too,” and he wrote a very angry, sarcastic dissent to the court’s finding a right of gay and lesbian couples to marry.

Of course, the issue of whether to overrule Obergefell is not before the court in Fulton, but the majority’s views of that case and about the court’s role in protecting gays and lesbians could matter enormously. Also, there may well be five votes to overrule Employment Division v. Smith and to allow a religious exemption from general laws, including anti-discrimination statutes. In recent years, including in decisions in June 2020, the Roberts court has been very protective of free exercise of religion.

The underlying ultimate issue is one of profound importance. There inherently is a tension between liberty and equality. Any law that prohibits discrimination limits the freedom to discriminate. For over a half-century, the Supreme Court has found stopping discrimination to be more important than protecting a right to discriminate. The issue in Fulton is whether the court will continue to make this judgment or find that religious freedom is more important than protection from discrimination.


Erwin Chemerinsky is dean of the University of California at Berkeley School of Law. He is an expert in constitutional law, federal practice, civil rights and civil liberties, and appellate litigation. He’s the author of several books, including The Case Against the Supreme Court (Viking, 2014). His latest book, We the People: A Progressive Reading of the Constitution for the Twenty-First Century, was published in 2018.



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