Why Unanimity Was So Important in the Fulton Case

Published June 17, 2021

National Review Online

Today the Supreme Court decided Fulton v. Philadelphia, and for those keeping score, religious liberty won 9 votes, and sexual-orientation and gender-identity policies got 0.

The nearly unbroken religious-freedom win streak now stretches back decades, essentially all the way to the Employment Division v. Smith decision from 1990, which, after Fulton, is now on life support. (For an insightful analysis on the future of Smith, see my Ethics and Public Policy Center colleague Ed Whelan’s earlier post.)

After oral argument, it seemed clear the religious foster-care-agency plaintiff would prevail over the Philadelphia bureaucrats who banned the agency from helping children find loving mothers and fathers according to the agency’s perennial understanding of marriage. Although no same-sex couple had ever approached the agency for a placement, and there were plenty of other foster-care agencies willing to place with same-sex couples, Philadelphia went after Catholic Social Services after it found out that it followed Catholic teaching on families.

This is an unfortunately familiar story, in which the Supreme Court is required to referee the sexual-orientation and gender-identity (SOGI) wars as it did when it blocked the forced endorsement of same-sex weddings by a custom baker in the Masterpiece Cakeshop decision of 2018. But unlike then, this time there were no fiery dissents from justices on the left and no panegyric to LGBT rights. Not even Justice Sotomayor broke ranks.

Some commenters on the left are spinning at this surprising turn of events and claim that the three reliable liberals on the Court — Kagan, Breyer, and Sotomayor — were doing strategic damage control to prevent an even more pro-religious-liberty decision. But it is the liberal commenters who are doing the damage control.

It takes five votes to get a Supreme Court majority, and there were only three votes (Alito, Thomas, Gorsuch) that would have overruled Employment Division vs. Smith outright. This means that only two liberal justices would have needed to join the chief, Barrett, and Kavanaugh to give Chief Justice Roberts opinion-writing duties, yet all three did, making it unanimous in favor of the adoption agency.

Unanimity is achieved at the Supreme Court for really only two reasons: The case is easy, or they want to send a message in controversial ones. Here, they are clearly sending a message that will allow us to, hopefully, finally put to rest the slanderous charge that, as Philadelphia put it, SOGI laws “protect its people from discrimination that occurs under the guise of religious freedom” (emphasis added). Religious groups that run adoption and foster-care agencies, hospitals, food banks, houses of worship, schools, day-care centers, and universities are not cynically and fraudulently “using religion” when they serve the poor or the needy. They are exercising religion in all sincerity and out of love, including when their faith touches upon questions of family, human sexuality, and human flourishing.

By its actions the Court is saying people with sincere faith-informed understandings of social issues that cut against the grain of secularist thought aren’t to be treated as bigots, and government needs to back off.

The religiously intolerant Left invariably trots out the “but what about racists” card in these discussions, but none of the liberals on the Court followed that script this time. I suspect the Court didn’t condemn these religious beliefs with facile race analogies because they know there is something so different, real, and enduring in the nature and purpose of embodied human sexuality that even the liberals on the Court are now saying SOGI policies have gone too far.

As a doctrinal matter, here is the most important line of the case: “The question . . . is not whether the City has a compelling interest in enforcing its non-discrimination policies generally, but whether it has such an interest in denying an exception to CSS.” To which the Court answered with one voice, no. This means generalized interests in sexual-orientation and gender-identity-discrimination laws cannot automatically force individual religious organizations and people to act contrary to their beliefs. This is huge. It will help stop the abuses of SOGI laws where people purposely seek to “get offended” because they fear there is still someone somewhere who won’t bake a custom cake celebrating a same-sex wedding. Even Jack Phillips, who won the Masterpiece Cakeshop case on the issue of same-sex marriage, is now being forced by the state to bake a custom cake celebrating transgenderism. Maybe now we will see an end to this sort of divisive, government-enforced hounding.

When I headed the Civil Rights Office of HHS under Trump, we granted religious exemptions to adoption agencies just like the Court did today to Catholic Social Services. The LGBT Left flipped out, accused us of being extreme, and has been exerting continuous pressure on the Biden administration to undo those protections. I have always argued that turning one’s back on religious liberty in a pluralistic society is truly the extreme position, and after Fulton, I can offer nine additional reasons in support.

Roger Severino is Senior Fellow at the Ethics and Public Policy Center, where he heads the HHS Accountability Project.

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