In my article noting the Supreme Court’s decision in Fulton v Philadelphia, I wrote, “I anticipate an editorial in The Philadelphia Inquirer denouncing this decision.”

I had anticipated a main editorial by the Inquirer’s Editorial Board, so I missed on that one, but there certainly was a significant OpEd piece:^[1]Fairness requires me to note that the Inquirer also published, on the same day, in the same OpEd section, Supreme Court decision is a win for religious freedom: Religious actors shouldn’t be forced … Continue reading

Supreme Court was wrong. Religious beliefs can’t be a free pass for discrimination. | Opinion

As I can attest from personal experience, the process of becoming a parent is highly intense, personal, lengthy, and emotionally challenging.

by John Culhane, For The Inquirer | June 21, 2021

The United States Supreme Court has just ruled against Philadelphia, and in favor of Catholic Social Services (CSS), in a case asking whether the agency can discriminate against same-sex couples by refusing to certify them as foster parents. Chief Justice John Roberts, in a judicial sleight of hand, crafted a narrow opinion that can’t be readily exported to other cases. As both a law professor and a gay father with first-hand experience dealing with the city’s foster care system, I have a complicated reaction to this decision. In the end, though, businesses and agencies that offer services to the public must do so with an even hand. Religious beliefs can’t be a free pass for discrimination.

The author, John Culhane, is the H. Albert Young Professor of Law at Delaware Law School, and through roughly 700 words he makes his case. Being homosexual himself, I see him as a special pleader.^[2]As a Mass-every-Sunday Catholic, I suppose it would only be fair to admit that I am a special pleader as well. His OpED is based on legal arguments, and he certainly made one very valid point: Chief Justice John Roberts’ majority opinion left Employment Division, Department of Human Resources of Oregon v. Smith, 494 U. S. 872 (1990), in place, where Justices Samuel Alito, Neil Gorsuch and Clarence Thomas would have overturned it.

The Smith case held that religion could be subjected to civil and criminal law if such subject was not aimed at religion, but was completely neutral in its application. But facts are stubborn things, and the Smith case was about the state of Oregon refusing unemployment benefits to two persons who were discharged for using the hallucinogenic drug peyote, containing mescaline. It did not compel any individual to take an action against his faith, but does not shield him from the consequences of his faith related actions.

Skipping down several paragraphs, Mr Culhane continued:

In distinguishing the services that foster placement agencies provide from other public services, the Supreme Court is not totally off the mark. As I can attest from personal experience, the process of becoming a parent is highly intense, personal, lengthy, and emotionally challenging. It’s vital for the prospective foster or adoptive parents to have a strong and trusting relationship with those working for the agency they’re assigned to. My husband and I would not have wanted to work with CSS under any circumstances. It’s hardly surprising that, according to the record in this case, “no same-sex couple [had] even sought certification from CSS.” And “if it did, CSS would direct the couple to one of the more than 20 other agencies . . . all of which currently certify same-sex couples.”

Should this reassignment move be permitted? This isn’t like the earlier Supreme Court case involving a cake shop baker who refused to design a “masterpiece” for a gay couple. Even if the couple could just walk down the street to a more accommodating bakery, the refusenik shouldn’t get a pass: If you’re open to the public, you need to bake cakes for all comers. But the relationship between a foster care agency and prospective parents is nothing like that. So it’s no wonder that gay and lesbian couples have avoided CSS, and the court’s ruling likely won’t make any practical difference.

Clearly, Mr Culhane was disappointed with the decision in Masterpiece Cakeshop Ltd v Colorado Civil Rights Commission, 584 U.S. ___ (2018), in which baker Jack Phillips was not punished for refusing to bake a ‘wedding’ cake for a same-sex ‘marriage.'^[3]Yes, you may infer from my placing the word ‘marriage’ in single quotation marks that I do not believe that, though legal, a homosexual ‘marriage’ constitutes a real marriage. But Mr Phillips was willing to bake cakes for all comers; he was simply unwilling to bake a cake with a particular message which was contrary to his religious beliefs; Mr Culhane did not address that distinction. Mr Culhane, I infer, would rather see Mr Phillips fined, or imprisoned, or at least driven out of business for his refusal to bake a cake with what he considered to be an objectional message.

More, Mr Culhane admitted that Catholic Social Services refusal to promote foster care or adoption to homosexual couples injured no one, because homosexual couples were not trying to avail themselves of CSS agency, and that there are more than twenty other agencies involved in the same area which would agree to provide foster care and adoption services to homosexual couples.

One wonders: were my wife and I trying to adopt a child, would Mr Culhane think it legally wrong of such an agency to take as a reason for blanket refusal that I do not, as stated in footnote 3 of this article, and footnotes 1 and 3 of my previous article on the subject that I do not believe in the validity of same-sex ‘marriage’ or homosexual couples adopting children? After all, the argument could be made that my religious positions could be harmful to a child, and I’d bet a case of Mountain Dew that Mr Culhane would believe just that.

Mr Culhane concluded:

Perhaps the court’s workaround led to a workable, practical solution here. But when the issue is squarely presented, the only defensible outcome is to apply the antidiscrimination law with an even hand.

The problem with that argument is that the Constitution, not just statutory law, but the Constitution itself, prohibits laws which restrain the free exercise of religion; Mr Culhane took no note of that in his admittedly limited OpEd piece. Though he stated that “the decision is still wrong and the Supreme Court misread the law,” it’s a bit difficult to make that case in a 9-0 decision; it wasn’t just the Justices appointed by the evil reich-wing Republicans who voted in favor of Catholic Social Services, but those appointed by Presidents Clinton and Obama.

There is more hope in this decision than some conservatives see. Only three of the Justices stated explicitly that they wanted to overturn Smith, Justice Amy Barrett wrote, in her concurrent opinion, which was joined by Justice Brett Kavanaugh:^[4]Justice Stephen Breyer joined with Justice Barrett in all but the first paragraph, and this quotation is from the first paragraph.

Petitioners, their amici, scholars, and Justices of this Court have made serious arguments that Smith ought to be overruled. While history looms large in this debate, I find the historical record more silent than supportive on the question whether the founding generation understood the First Amendment to require religious exemptions from generally applicable laws in at least some circumstances. In my view, the textual and structural arguments against Smith are more compelling. As a matter of text and structure, it is difficult to see why the Free Exercise Clause—lone among the First Amendment freedoms—offers nothing more than protection from discrimination.

Mrs Barrett was concerned that if Smith were overturned, there would be no precedent to replace it. But, if it comes right down to it, it seems that there are at least five Justices who would be willing to overturn Smith if the case before the Court required it; this case did not require it.

But another case will, and soon, and it needs to come up before Justice Thomas, who is 72 years old, leaves the Court, because it does not seem that the Chief Justice agrees. Not only did he not write such in his majority opinion, but he allowed the Smith standard to be used to uphold the unconstitutional closing of churches in Calvary Chapel Dayton Valley v. Sisolak, 591 U. S. ___ (2020) and South Bay United Pentecostal Church v. Newsom, 590 U. S. ___ (2020) before Justice Barrett replaced Justice Ruth Ginsburg.

What should replace Smith? It’s simple: how about “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof”?