Supreme Court unanimously upholds religious freedom over LGBTQ rights – and hails bigger victory for conservatives ahead

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(THE CONVERSATION) It ​​wasn’t a dramatic expansion of religious rights – yet. But the Supreme Court’s ruling in favor of a Catholic adoption agency that had been kicked out of Philadelphia foster care programs for refusing to work with same-sex couples will have consequences. This suggests that when the larger question of whether religious groups have the right to discriminate comes before judges, they will likely defend religious freedom over gay rights.

The court ruling, released in a 9-0 decision, emphasizes a pluralistic approach: the Christian agency can participate in adoption programs while adhering to its religious beliefs, and LGBTQ couples will continue to have access to other adoption agencies within the Philadelphia system. .

The ruling is narrow, but it means any unequal treatment of religious groups will be considered a violation of the First Amendment, even if it comes at the expense of the dignity of LGBTQ citizens.

Perhaps the most important aspect of the decision is its unanimity in maintaining a clear standard of neutral treatment for religious and secular groups. The city government has claimed it does not violate that standard, but even liberal judges agreed it does.


The city’s claim that government funding or the city’s contract rules changed the equation against religious rights was flatly rejected by the court.

The unanimous decision came by delaying another fundamental question that some of the judges wanted to address: whether businesses or religious groups clearly have the right to deny services to the LGBTQ community, or whether states can insist that in the square public, such faith-based groups set aside discriminatory beliefs.

Nonetheless, as an expert on the Supreme Court, I believe the decision of the nine judges will have broad ramifications for current government policies and future court decisions. By subordinating the dignity of same-sex couples to the religious rights of believers, the landmark new court ruling will influence many interactions between religious organizations and LGBTQ citizens.

Attack on the dignity of same-sex couples

The Supreme Court case concerned the City of Philadelphia’s refusal to continue allowing Catholic Social Services to participate in the city’s adoption and fostering programs because the religious charity would not serve couples same sex.

The group claimed that its First Amendment right to the free exercise of religion was violated as a result.

The organization, along with Sharonell Fulton and Toni Simms-Busch – two Catholic women who wanted to serve as foster parents through the agency – sued the city.

They were aided by the Becket Fund for Religious Liberty, a nonprofit law firm behind several successful Supreme Court cases, including Burwell v. Hobby Lobby in 2014, which confirmed the ability of religious companies to refuse to pay for forms of contraception that violate their beliefs, and Little Sisters of the Poor v. Pennsylvania in 2021, which also protected religious exemptions to contraceptive coverage under the Affordable Care Act.

The city of Philadelphia has argued that religious rights do not allow infringement of third parties, including the dignity of same-sex couples who are publicly said to be unacceptable.

As a constitutional law professor wrote in an amicus brief in favor of the city: “Believers can believe whatever they want and organize their affairs for discriminatory purposes, of course, but not when the government pays and not. when the public is affected. . “

But the judges seem to agree with the alternative framing proposed by Lori Windham, Fulton’s lawyer: “Does the free exercise clause shrink every time the government expands its reach and begins to regulate the work that has historically and traditionally been carried out by religious groups? ? “

A surprising unanimity

All nine judges agreed with the basic idea that Philadelphia could not exclude Catholic social services. There was no dissent from Judges Stephen Breyer, Elena Kagan or Sonia Sotomayor – the current liberal wing of the court.

But three of the conservative judges – Samuel Alito, Neil Gorsuch and Clarence Thomas – signed separate opinions in agreement with the outcome but arguing that religious rights protections should have been even stronger.

The ruling does not protect the ability of religious groups to discriminate or exclude under any circumstances. Rather, it prevents government authorities from applying different standards to religious and secular organizations. Philadelphia policies did not apply a “generally applicable” rule, but rather allow exceptions at their discretion.

In making their ruling, the judges cited earlier rulings saying that while the government allows exceptions for secular reasons, the First Amendment requires them to allow them for religious reasons as well. As Chief Justice John Roberts put it, “The creation of a formal mechanism for granting exceptions makes a policy generally not enforceable.”

Presenting the case to the judges, Fulton’s attorney argued: “In our pluralistic society, this Court has repeatedly said that there should be room for those with different views.

Roberts’ majority opinion seems to reflect this view: “No same-sex couple has ever applied for CSS certification. If that were the case, CSS would direct the couple to one of the more than 20 other agencies in town, all of which currently certify same-sex couples.

For this reason, “CSS is only seeking an accommodation that will allow it to continue serving the children of Philadelphia in a manner consistent with its religious beliefs; he does not seek to impose these beliefs on someone else.

The extension of religious rights

At just 15 pages, the decision is what Judge Alito described as a “wisp of a decision” in his 77-page agreement. He argued that the court should have ruled more boldly in favor of expanding religious rights.

The Fulton decision follows a long line of other decisions that have tilted in favor of religious claimants. In recent years, the court has increasingly protected the freedom of religious groups in government programs, commerce, public exhibits, and public school curricula.

The most recent decision also suggests the limits of LGBTQ rights under the current court. There has been no major victory on this issue in the Supreme Court since the 2018 retirement of Justice Anthony Kennedy – the author of all major gay rights decisions in recent decades, including Obergefell v. Hodges, who legalized same-sex marriage nationwide in 2015. But Kennedy himself hinted at the limits of LGBTQ rights when opposing religious freedoms, writing in the Obergefell ruling that “the First Amendment guarantees that religious organizations and individuals are afforded adequate protection as they seek to teach the principles that are so fulfilling and so central to their lives and faith.

Since the Obergefell case, most Supreme Court cases involving LGBTQ rights have not been brought by an LGBTQ complainant. Instead, they were brought in – and won over – by religious groups.

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The question to come

The Fulton case was no exception to this winning streak for religious rights.

But what the ruling failed to do is give a definitive answer to the question to which these cases are heading: Should gay rights or religious rights give way when the two are in irreconcilable conflict? When the court answers this question, it is unlikely to be unanimous. But the current trajectory suggests that religious rights are more likely to prevail.

As Justice Gorsuch concluded in his concurring opinion, “dodging the issue today guarantees that it will happen again tomorrow”.

The Conversation is an independent, nonprofit source of information, analysis, and commentary from academic experts. The Conversation is fully responsible for the content.

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