Op-Ed: Giving people the right to discriminate based on religious beliefs

Under longstanding constitutional law, religious beliefs do not provide exemption from civil rights laws and cannot be used as an excuse for discrimination.

Yet the Supreme Court Thursday in Fulton v City of Philadelphia ruled in favor of Catholic Social Services’ ability to participate in the city’s foster care program, even though that organization discriminates on the basis of sexual orientation. Although the reasons for the court’s unanimous decision are limited, the implications are wide and point to a court that is inclined to allow discrimination based on religious beliefs.

The Fulton case involves the city’s decision to refuse to contract with organizations that engage in prohibited discrimination. Philadelphia regularly contracts with private social service agencies to help place children in foster homes. These agencies are “delegated” from the government to determine whether individuals meet the state’s requirements to become foster parents. Each contract is explicit in prohibiting these agencies from discriminating on the basis of race, gender, religion and sexual orientation.

Catholic Social Services has long participated in this program, but in recent years has refused to do so due to the contractual requirement not to discriminate based on sexual orientation. He says his religious beliefs prevent him from carrying out inspections of same-sex couples or placing children with them.

The organization challenged the non-discrimination requirement as violating its 1st Amendment rights. The Federal District Court and the United States Court of Appeals for the 3rd Circuit rejected those arguments, but the Supreme Court overturned those decisions and ruled in favor of the agency.

In 1990, the court in Division of Employment v. Smith ruled that the free exercise of religion did not provide an exemption from generally applied law. In that case, the court denied a request by Native Americans — based on their religious beliefs — for an exemption from a state law banning the use of peyote. But the court also said laws cannot discriminate against religion.

Chief Justice John G. Roberts Jr., writing in the Fulton case, said Philadelphia law allowed exceptions and that discretion meant it was not a sufficiently general law. The possibility of discrimination in the exercise of this discretion, he wrote, made the Philadelphia requirement a violation of the free exercise of religion.

But there was no evidence that Philadelphia actually treated Catholic social services differently from other social service agencies or used its discretion in impermissible ways. And interestingly, even the liberal justices – Stephen G. Breyer, Sonia Sotomayor and Elena Kagan – did not raise this point. Perhaps they were happy to accept a narrow decision rather than risk a decision that changed the law and opened the door even further to discrimination based on religious beliefs.

I fear that this decision is part of a trend to extend the protection of the free exercise of religion to the detriment of other crucial government interests. Earlier this year, the court found that California violated the free exercise of religion by limiting the size of religious gatherings in homes, even though secular gatherings of the same size were restricted.

A few years ago, there was the case of a baker who, because of his religious beliefs, refused to design a cake for a same-sex couple. In 2018, the court ruled in favor of the baker, but again on narrow grounds. Many ongoing cases raise the same issue involving florists, photographers and stationers, who refuse to serve same-sex couples because of the business owner’s religious beliefs. A year ago, the court ruled that Title VII of the Civil Rights Act of 1964 protects workers from discrimination based on sexual orientation or gender identity. Many employers are now suing and claiming a religion-based right to discriminate against LGBTQ people.

The underlying question is of paramount importance. There is inherently a tension between freedom and equality. Any law that prohibits discrimination limits the freedom to discriminate. For more than half a century, the Supreme Court has held that stopping discrimination is more important than protecting the right to discriminate. In fact, in Newman v. Piggie Park Enterprises in 1968, the court called “patently frivolous” a challenge to the Civil Rights Act of 1964, which prohibits racial discrimination by places of public accommodation, in grounds that it interferes with “freedom”. exercise of the accused’s religion.

During Fulton’s closing argument, Breyer and Kagan asked if Philadelphia could refuse to contract with a social services agency that refused to place children with interracial couples because of its religious beliefs. The Catholic Social Services attorney immediately said the city could refuse to contract because it involved racial discrimination, while this case involves discrimination based on sexual orientation. But there is no basis for this distinction: there is a compelling government interest in ending both forms of discrimination.

While Thursday’s ruling doesn’t break any new legal ground, it again shows that the court protects religious freedom even when it inflicts harm on others. It could signal a dangerous and wider movement in the courts to allow discrimination based on religious beliefs, especially against gays, lesbians and transgender people.

Erwin Chemerinsky is dean of the UC Berkeley School of Law and contributor to Opinion. He is the author of a forthcoming book, “Presumed Guilty: How the Supreme Court Empowered the Police and Subverted Civil Rights”.

Ruth R. Culp