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SCOTUS Hands Religious Conservatives a Win, Though Narrow

The Liberty Bell in Philadelphia
By Richard Dahl on June 18, 2021 1:32 PM

In a case that pitted religious freedom versus anti-discrimination laws, the U.S. Supreme Court came down unanimously, but narrowly, on the side of religious freedom June 17.

The court ruled that the city of Philadelphia cannot exclude a Catholic organization from its foster-care program because the program won't accept same-sex couples.

The agency, Catholic Social Services (CSS), argued that its religious views kept it from screening same-sex couples as foster parents. Philadelphia countered by saying that all the private foster-care agencies it uses are required to not discriminate because of sexual orientation.

Writing for the court, Chief Justice John Roberts said that CSS “seeks only an accommodation that will allow it to continue serving the children of Philadelphia in a manner consistent with its religious beliefs; it does not seek to impose those beliefs on anyone else. The refusal of Philadelphia to contract with CSS for the provision of foster care services unless it agrees to certify same-sex couples as foster parents … violates the First Amendment."

Falling Short of a Sweeping Overturn

The ruling was the most high-profile defeat of LGBTQ rights since the court's 7-2 ruling in 2018 absolving a baker of discrimination for refusing to make a wedding cake for a same-sex couple.

Still, the ruling in the Philadelphia case was not the sweeping victory the religious right was hoping for. Like the ruling in 2018, the justices' opinion was restricted narrowly to the case at hand. Supporters of religious freedom hoped that the justices would use the Philadelphia case to overturn a 1990 decision, Employment Division v. Smithwhere the court held that the government may impose restrictions on religious entities as long as those restrictions are applied equally to religious and secular activities. But the justices wouldn't go that far.

In the opinion, Roberts interpreted Philadelphia's anti-discrimination ordinance narrowly, finding that it did not cover the work that CSS does in certifying foster parents. That work, he wrote, does not amount to “public accommodation" where discrimination is barred on the basis of religion, race, or sexual orientation."

Failing to 'Stand up for the First Amendment'

While the opinion was unanimous, three conservative justices – Samuel Alito, Clarence Thomas, and Neil Gorsuch – said the court should have overturned the 30-year-old Smith decision. Alito wrote that he was “disappointed" that the court had "failed to stand up for the First Amendment."

Philadelphia City Solicitor Diana Cortes issued a statement saying the decision was a “difficult and disappointing setback," but that she was gratified that the court did not “radically change existing constitutional law to adopt a standard that would force court-ordered religious exemptions from civic obligations in every arena."

Meanwhile, attorney Lori Windham of the Becket Fund for Religious Liberty, who argued the case on behalf of CSS, told the Associated Press the ruling was a “common-sense ruling in favor of religious social services."

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