Judge Samuel Alito called it a “whiff” of a decision – a Supreme Court ruling on Thursday that favored Philadelphia Catholic Social Services but was far from the constitutional storm that would have changed the courts’ interpretation of religious freedom under the First Amendment .
Still, there was a shift.
Government agencies have now advised that if they want to ban discrimination against LGBTQ people or others, they cannot allow exceptions or religious groups have the right to ask and they have a strong case for getting it .
The Supreme Court ruling concerned the Philadelphia decision to stop referring children to Catholic Social Services for foster care after learning in 2018 that the local agency would not certify same-sex couples as foster parents.
The city said the agency has violated its obligation not to discriminate against contractors based on sexual orientation. The Catholic Social Service had unsuccessfully argued in lower courts that it should be exempted because of its religious belief that marriage is only between a man and a woman. It was also found that there were more than 20 other agencies that would work with same-sex couples.
A decade-old Supreme Court precedent is that religious groups cannot apply for an exception, even if it conflicts with their beliefs, when government policy applies to all.
But in Thursday’s majority opinion, the court found that Philadelphia’s contract with foster care allowed the human services commissioner to make exceptions to its non-discrimination law.
“Where such a system of individual exemptions exists, the government cannot oppose the extension of this system to cases of religious hardship without compelling reason,” the court said, adding that the city has no compelling reason to deny the Catholic authorities an exemption.
Samuel Marcosson, a law professor at the University of Louisville who focuses on constitutional law and LGBTQ rights, said the ruling will present governments with “a sometimes difficult choice as to whether to go about their policies absolutely”.
Their dilemma will be âto sacrifice the flexibility to make meaningful exceptions to achieve important policy goals, or to allow these exceptions to become much wider in practice than the government would like, as religious groups take advantage of them could “. said Marcosson.
While all nine judges agreed with the decision, Alito and two others wanted to go further. They asked the court to reconsider the 1990 precedent on which it was based: Employment Division v. Smith, who stated that Oregon drug bans apply to everyone, even those who use them for religious ceremonies.
Alito wasn’t the only one to predict that if Philadelphia lifts its stance without exception, it will not solve things. This or a similar case could soon come back to court.
“It won’t work if Philadelphia tries to uphold the judgment by depriving them of any discretion in granting exceptions,” said Bruce Ledewitz, law professor at Duquesne University in Pittsburgh and a constitutional law specialist.
He said the direction of the court under Chief Justice John Roberts is so predictable that the religious party will win if such a case is needed. If a religious party was likely to lose, the court wouldn’t even take the case, he said.
“What you have is a historic moment in the history of the court,” he said. “The majority feel threatened for some reason and they will uphold religious freedom.”
In fact, a recent study examining cases before the Supreme Court found that the Supreme Court advocated mostly religious petitions and that while previous cases often focused on the rights of religious minorities, recent rulings have favored mainstream Christian groups.
Thursday’s ruling shows “exceptional support from the Court of Religion,” said Lee Epstein, law professor at Washington University in St. Louis and co-author of the study.
Mary Catherine Roper, assistant legal director for the American Civil Liberties Union of Pennsylvania, which represented two organizations that intervened in the case to seek fair treatment for LGBTQ families in the Philadelphia care system, said the verdict had a silver lining: The majority opinion is wrong. Challenging Philadelphia’s right to ban discrimination in its care system.
“We are disappointed for the families and children of Philadelphia,” said Roper, but glad the court did not allow Catholic Social Services “to redesign the care system according to their own beliefs.”
Roman Catholic Archbishop Nelson Perez of the Archdiocese of Philadelphia, affiliated with the Catholic Social Service, welcomed the ruling, saying it âmakes it very clear that religious services cannot be compelled to give up their beliefs as the price of service to the needy. ” he said.
But not all religious voices were supportive.
“The Catholic hierarchy may think they have won a breathtaking victory,” said Francis DeBernardo, executive director of New Ways Ministry, which advocates for LGBTQ Catholics. “In fact, it is a crushing defeat for the Catholic values ââof equality, respect and human dignity for all people.”
M. Currey Cook of Lambda Legal, who campaigns for LGBTQ rights, said the case would be different if there was evidence of the impact of the Catholic agency’s policies on LGBTQ couples or children.
“When faced with such facts in a future case,” Cook said, “the court will have to deal for the first time with how such discrimination harms foster children whose needs and welfare must always be paramount in child welfare cases. ”
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