July-August 2021 Church & State Magazine | Editorial

The U.S. Supreme Court’s June 17 ruling in Fulton v. City of Philadelphia wasn’t quite what anyone had expected.

In a unanimous ruling, the high court decided that Philadelphia officials had to allow Catholic Social Services (CSS) to exclude LGBTQ families from its publicly funded foster care program. The court ruled this way in part because CSS’s contract with Philadelphia included a clause stating that the agency would not “reject a child or family” on the basis of a number of characteristics, including sexual orientation, “unless an exception is granted by the Commissioner” of the Philadelphia Department of Human Services at the commissioner’s “sole discretion.”

The court ruled that because the commissioner has the power to grant other types of exceptions (even though he never had), religious exceptions must be extended as well.

Thus, the ruling in the case is very narrow and based on a unique set of facts. As longtime Supreme Court reporter Pete Williams of NBC News wrote, “It was narrowly confined to the facts of this case and is therefore unlikely to have a nationwide impact.”

The ruling is still a disappointment. While religious extremists did not get the sweeping free pass they were seeking to discriminate wherever and however they want, the fact remains that the court is essentially compelling a city to contract with a religious group that discriminates – unless the city chooses to change its policies regarding exceptions.

Furthermore, the question of whether taxpayer-funded agencies and private businesses can discriminate against people based on religion is still out there hanging. The justices have simply kicked the can down the road.

It is difficult to predict where the court will go from here. In Fulton, the court declined to rewrite the First Amendment to grant a broad license to discriminate in the name of religion. The court also acknowledged the importance of non-discrimination laws and specifically respected the dignity of LGBTQ people. Yet this court has also embraced a definition of religious freedom that we believe goes way beyond the founders’ intent.

“We at Americans United will continue to work for real religious freedom, equality and the right to live and believe as we choose,” Rachel Laser, president and CEO of Americans United, said in a media statement. “The vast majority of Americans believe our laws should not allow anyone to use their religious beliefs to harm others – and certainly vulnerable children in foster care. Now more than ever, Congress needs to pass the Do No Harm Act to help prevent religious freedom from being misused to harm others.”

The ruling in Fulton could have been much worse. That doesn’t mean we can relax. Religious extremists want to turn the principle of religious freedom into an instrument of discrimination and a device to harm others. We must ensure that does not happen.