“[G]ratutious interference in other people’s lives is bigotry. The fact that it is often religiously motivated does not make it less so.” — Richard A. Posner
It is a continually remarkable fact that, nearly every week, one can see, in a nationally respected publication, religion being described as though it is under some form of attack through “punitive action” by the state. It is remarkable because it is a rather obvious, legal fact the First Amendment’s Free Exercise Clause has been operating for decades at its absolute zenith of protection. Indeed, the expansion of free conscience liberty entirely has proceeded in a way that facially favors religious belief at the great expense of the deeply held personal convictions of nonbelievers. The fact that criminal liability for the same act is now dependent upon whether you subscribe to religion or not, for example, grossly offends the constitutional guarantee of equal protection under the law.
It is also remarkable to see those who are supposedly so concerned with the state of free conscience rights never say anything about the current Attorney General repeatedly declaring that anyone who does not subscribe to Christianity or Judaism is not morally fit to be a citizen. Or, more importantly, that nonbelievers are regularly stripped of their basic civil liberties on a scale no religious group in this country could possibly identify with, such as the right of nonbelievers to address their own legislatures with messages of inclusiveness, teamwork, and a government that serves all regardless of religious belief. Or that religious advocates are currently fighting for (and winning in federal courts!), to deny nonbelievers the ability to hire celebrants that share the couple’s personal beliefs at their own weddings. It is in this context, with a Free Exercise Clause operating at its zenith (for Christians only), and where support for, or adherence to, religion is regularly being forced onto nonbelievers by the state, that the upcoming Fulton v. City of Philadelphia case is going to take place in.
The Fulton case was brought after Philadelphia refused to refer any of its foster children to a religious institution for adoption placement after the city became aware the institution would refuse to place children with any same-sex couple, regardless of how qualified the couple is to take care of the child. In lay terms, what the religious institution in the Fulton case is asking the Supreme Court for is to interpret the Free Exercise Clause as empowering the religious institution with the ability to strip adoption benefits from qualifying foster children in a government-run program.
I describe the case in those terms because the simple fact is the children that qualifying same-sex couples adopt derive substantial economic and social benefits. These substantial benefits are precisely why Philadelphia does not want institutions operating within its adoption program to exclude same-sex couples. In other words, the city wants each child to have access to the entire eligible adoption applicant pool. Moreover, the religious institutions denial to same-sex couples when they would otherwise qualify confers no benefits for the children in any way, shape, or form. The only justification for the institutions policy therefore is “gratifying feelings of hostility towards” same-sex couples.
In what should be a conscience-shocking irony, the religious institution in Fulton is arguing that if the government does not allow religious institutions to deny foster children access to qualifying same-sex couples within government adoption programs, it is the government that is being offensively discriminatory. If the Supreme Court agrees with the religious institution’s argument (which it will, more on that below), it would, in effect make “the professed doctrines of religious belief superior to the law of the land.” Put simply, any local or state government that wanted to create an adoption program that offered every foster child the full spectrum of qualifying parents would not be able to. States and local governments would be forced to place children in institutions that deny access based on reasons that violate government law. Moreover, in Fulton the discrimination by the religious institution involves same-sex couples. If the institution wins, however, it is difficult to see how religious institutions that discriminate based on race could be denied either.
To be clear, whether a private religious institution that runs its own adoption program can discriminate against same-sex couples is an entirely different question that the one presented in Fulton, which deals with a government-run program. Furthermore, although I view the refusal to place foster children in the loving homes of caring, qualified, couples based entirely on the sex of the parents as grotesque and appalling, unlike the religious institution in Fulton, I am not demanding in this piece that government step in and enforce my views onto third parties. In other words, the key issue in Fulton is not my or the institution’s beliefs, it is about the children, and their right to access to the entire pool of eligible, loving adoptive homes.
Because a majority of this current Supreme Court has shown a willingness to favor Christianity in the law, however, those that have been following religious liberty cases know that a decision in Fulton favoring the religious institution is all but assured. Accordingly, we have a religious liberty standard that allows the state of Texas to disqualify, literally, a fifth of its population from performing private wedding ceremonies simply because they do not subscribe to religion. The City of Philadelphia will be denied the ability to disqualify religious institutions from government programs even when the religious institution refuses to execute the essential goal of the government program, and in fact seeks to deny foster children access to loving homes. Such a standard could not honestly be described as upholding free conscience “liberty” for all, but rather one that effectuates theocracy on the express behalf of Christion nationalists.
Tyler Broker’s work has been published in the Gonzaga Law Review, the Albany Law Review, and is forthcoming in the University of Memphis Law Review. Feel free to email him or follow him on Twitter to discuss his column.