A New Assault on Marriage Equality

On October 5, the opening day of its new term, the Supreme Court declined to take up a lawsuit brought by Kim Davis, a county clerk in Kentucky. In 2015 Davis had refused to issue marriage licenses to same-sex couples despite the Court’s decision that June in Obergefell v. Hodges guaranteeing them the right to marry. She had urged the Court to rule that she could not be held liable for turning same-sex couples away. The Court doesn’t issue explanations when it declines to review a case, but in this instance Justice Clarence Thomas, joined by Justice Samuel Alito, wrote a separate statement expressing their view that the Court’s ruling in Obergefell has had “ruinous consequences for religious liberty.” By recognizing a right that many people find objectionable because of their faith, Thomas argued, the Court had “created a problem that only it can fix.”

On November 4, the day after the election, the Court heard arguments in Fulton v. City of Philadelphia, a case that Thomas and Alito almost certainly view as an opportunity to begin their repairs. It asks whether the constitutional guarantee of religious freedom allows a Catholic organization to discriminate against same-sex couples in carrying out a government program. Philadelphia contracts with about thirty nonprofit agencies to help it assess whether families satisfy state criteria for taking in foster children. Those criteria do not require the would-be foster parents to be married, much less straight. And a city ordinance requires that all those providing services on the city’s behalf not discriminate on the basis of race, sex, or sexual orientation.

When the city learned that two of its contractors—Catholic Social Services (CSS) and Bethany Christian Services—categorically refused to certify fully qualified families if they were headed by same-sex couples, it informed both groups that such refusals violated the terms of the contract. Bethany agreed to comply with the contract by not excluding same-sex couples, and Philadelphia continues to contract with it. But CSS refused, so the city terminated its contract. It continues to pay CSS approximately $17 million every year, however, to provide a wide range of other services to children and families in the foster care system. It has merely declined to hire CSS to certify foster families if CSS will not apply the government’s criteria for that certification.

CSS sued, arguing that it has a constitutional right, based on the First Amendment’s free exercise clause, to receive a government contract to certify foster care families while refusing to certify any family headed by a same-sex couple. It does not suggest that whether a couple is same-sex or opposite-sex is relevant to the official state criteria for qualified families. But it maintains that because Catholicism views marriage as restricted to relationships between a man and a woman, it should not have to certify same-sex couples, even if they are fully qualified under the state’s criteria. Other agencies that don’t have such religious objections can certify same-sex couples, CSS argues, so it should not have to do so. At bottom, it urges that its religious liberty should take precedence over the rights of same-sex couples to be treated equally, even if that results in denying children the care they need from fully qualified families.

If this sounds familiar, it should. Two years ago, the Court decided Masterpiece Cakeshop v. Colorado Civil Rights Commission, a case involving a Christian bakery’s claim that it could not be compelled to bake a wedding cake for a same-sex couple, and therefore should be exempt from a state law requiring businesses that serve the public to treat all customers equally, regardless of their sexual orientation.¹ The couple could get a cake elsewhere, the bakery argued. The Court ultimately did not decide whether the bakery had a constitutional right to discriminate, ruling instead that the state civil rights commission that adjudicated the charge against it had violated its rights by exhibiting antireligious bias. However, the Court expressed skepticism about the bakery’s principal claim, writing that as a general matter,

religious and philosophical objections…do not allow business owners and other actors in the economy and in society to deny protected persons equal access to goods and services under a neutral and generally applicable public accommodations law.

At first glance, Fulton is a replay of Masterpiece Cakeshop. Like the bakery, CSS asserts that it has a right to discriminate on the basis of sexual orientation because of its religious beliefs, and that it has been penalized for its religious objection to same-sex marriage.

But in important respects, the cases are different. Masterpiece Cakeshop challenged a regulation of private business, while CSS objects to the terms of a government contract it voluntarily entered into. And while Masterpiece Cakeshop was engaged in a private commercial transaction, CSS seeks to carry out a government function: certifying families for foster care, for which it is paid with taxpayer dollars. These differences make CSS’s arguments far more extreme than those of the bakery. It claims not a right to be free from government regulation of its private conduct, but an affirmative entitlement to millions of dollars in government funds to perform a government program, while violating the terms of the government contract and discriminating against individuals seeking to participate in the program. If its argument is accepted, it will open the door to providers to deny government services to women, Muslims, or any other group to which they assert a religious objection.

It is no secret that many of the Court’s Republican-appointed justices view religious liberty as inadequately protected. Just last year, the Court ruled that Catholic schools had a constitutional right to discriminate on the basis of race, sex, disability, and other protected characteristics in hiring teachers, under a “ministerial exception” that precludes the state from interfering with internal church governance—even when the teachers are not Catholic themselves, principally teach secular subjects, and conduct only minimal religious instruction. And whereas the Court once looked with considerable skepticism on any government support to religious schools as a potential violation of the separation of church and state, last year it ruled that Montana had violated the free exercise clause by not providing scholarships to religious school students on the same terms as it offered them to children attending secular private schools.

Moreover, the Court that will decide Fulton will differ significantly from the one that heard Masterpiece Cakeshop: Brett Kavanaugh has taken the place of Anthony Kennedy, who wrote the Court’s decision in that case and nearly all of its decisions involving LGBTQ rights; and Amy Coney Barrett, a deeply conservative Catholic, now occupies Ruth Bader Ginsburg’s seat.

For these reasons, many observers are predicting that the Court will expand its conception of religious liberty at the cost of LGBTQ equality in Fulton. But to do so would require the Court to go further than it ever has before, and to rule that religious adherents have a right to be paid to perform government services while violating the government’s own terms for those services. Such a ruling would also require the Court’s conservative justices to contravene three of their most fundamental constitutional tenets. The case, therefore, will test whether the justices are consistently conservative, even when their conservatism leads them to rule against a religious liberty claim, or whether they are willing to forsake fundamental conservative precepts when religious liberty is said to be at stake.

The first conservative principle at odds with CSS’s claim is the notion that the Constitution confers negative rights, not positive entitlements. The First Amendment forbids the regulation of hate speech, for example, but it does not give anyone a right to a government subsidy to purchase white supremacist literature. As Justice William Rehnquist wrote in 1983, the Court has long rejected the “notion that First Amendment rights are somehow not fully realized unless they are subsidized by the State.”²

Similarly, while Roe v. Wade found that the due process clause forbids the government from prohibiting abortion during the first two trimesters of a pregnancy, the Court’s conservatives have ruled that poor women have no right to have their abortions funded by Medicaid. In an opinion written by Justice Potter Stewart and joined by fellow conservative justices Rehnquist, Lewis Powell, Warren Burger, and Byron White, the Court stated that “it simply does not follow that a woman’s freedom of choice carries with it a constitutional entitlement to the financial resources to avail herself of the full range of protected choices.”³ The Constitution, on this view, protects negative liberty, or freedom from government interference. Affirmative entitlements, conservatives argue, were not intended by the Framers, and are not judicially manageable in a world of limited resources.

CSS, however, asserts not a negative right to be free from state interference in its private conduct, as Masterpiece Cakeshop did. Rather, it asks the Court to find in the Constitution an entitlement to receive a city contract, worth about $2 million, to certify families, but to do so on its own criteria, not those of the city. There is no interference with negative liberty here. If CSS objects to the requirement that it certify all qualified families, it need not apply for the government contract in the first place.

A second widely shared conservative tenet is that when the government is managing its own affairs, as opposed to exercising sovereign power to regulate private activity, it must have broad leeway to set the terms. The government generally cannot control the speech of private citizens, for example. But if a mayor hires someone as his official spokesperson, he can demand that she express only the views the mayor dictates. “Government employers, like private employers, need a significant degree of control over their employees’ words and actions,” the Court stated in a 2006 decision rejecting a First Amendment challenge, written by Justice Kennedy and joined by John Roberts, Antonin Scalia, Thomas, and Alito. Otherwise, the Court continued, “there would be little chance for the efficient provision of public services.”⁴

The principle applies equally to government employees and independent contractors providing a government service, as the Court made clear in Rust v. Sullivan, a 1991 decision written by Rehnquist. The Court in Rust upheld the Reagan administration’s restrictions on family planning clinics that received federal funding under Title X of the Public Health Services Act. The administration had directed that doctors in Title X clinics could not tell their patients about abortion or refer them to an abortion provider, and had to advise them about and refer them for prenatal care.

Doctors argued that these rules violated their First Amendment rights to counsel their patients on all options available to them. Had the government imposed such restrictions on private medical services, its actions would plainly violate the First Amendment; the doctors argued that the same rule should apply here. The principal lawyer overseeing the defense of the restriction in the Supreme Court was a young star in the Reagan Justice Department, John Roberts. He argued that the rules did not violate the First Amendment because they regulated only what recipients of federal funding could say and do within the federally funded program, and the government had to be able to define the services its program provided. Doctors and clinicians were free to say whatever they wanted outside the government-funded program, Roberts argued, and that was sufficient. The Court agreed, in a decision joined by Kennedy, Scalia, Byron White, and David Souter.

Just as in Rust, the rule challenged in Fulton affects only what must be done within a government-funded program. It specifies that if an organization seeks on behalf of the city to certify families, it must do so on the city’s terms, just as the Title X rule provided that if clinics sought federal funds to provide family planning, they had to do it on the government’s terms. And just as the Title X regulations allowed recipients to say and do what they wanted outside the government-funded program, so Philadelphia’s rule leaves CSS free to say and do whatever it wants outside the foster care certification system.

Never before has the Supreme Court, or any of its conservative justices, recognized a private entity’s right to set its own terms for a contract to perform a government service. Yet that is precisely what CSS demands.

The third principle conservatives would have to contravene to rule for CSS is perhaps the most fundamental. They have long insisted that the Constitution prohibits only government actions that are intentionally or explicitly targeted at a protected right, not government practices that merely have an effect on that right. Thus, in 1987, the Court ruled that even a sophisticated statistical study showing that defendants in Georgia who killed white people were four times more likely to receive the death penalty than defendants who killed Black people did not establish a violation of equal protection. In an opinion written by Powell and joined by Rehnquist, Scalia, White, and Sandra Day O’Connor, the Court reasoned that absent evidence that the death penalty had been intentionally imposed on someone because of race, such statistical disparities, even when tested against dozens of nonracial variables, raised no constitutional problem.⁵ On the same grounds, the Court in 1979 rejected a sex discrimination challenge to a state law that gave hiring preferences to veterans; without proof that the law was intentionally adopted to disfavor women, it didn’t matter that it had that effect.⁶

The same holds true under the First Amendment. Laws targeting the content of speech call for “strict scrutiny” and are nearly always invalid. But a law that is not targeted at speech but has the effect of restricting expression—such as a ban on burning draft cards—does not violate the First Amendment. In 1990 the Court applied the same rule to religious free exercise claims, in a decision written by Justice Scalia and joined by Rehnquist, White, O’Connor, Kennedy, and John Paul Stevens. In Employment Division v. Smith, a Native American tribe challenged a state law making it a crime to use peyote. The tribe argued that even though the law did not single out their religion, it should be subject to strict scrutiny because it had the effect of prohibiting a central element of its religious practice. The Court rejected that contention, holding that neutral and generally applicable laws that are not targeted at religion, but merely have a disparate impact on religious practices, do not violate the free exercise clause.

The conservative resistance to disparate impact claims rests in part on concerns about the proper role of courts. All sorts of laws and practices have disproportionate effects on all sorts of groups. Many criminal laws disparately affect males and people of color; height and strength requirements disparately disadvantage women; and virtually all government fees disparately affect the poor. If every law that had such an effect were subject to constitutional review, the courts would be inundated. The result, Justice Scalia noted, would be an enormous transfer of power from the people to the courts. As he put it, the issue is “quite simply, whether the people, through their elected representatives, or rather this Court, shall control the outcome of” requests for religious accommodations from generally applicable laws.⁷

Philadelphia’s prohibition on discrimination based on sexual orientation is targeted not at religion but at discrimination, regardless of whether the discrimination is motivated by religion, political ideology, or pure animus. At most, the rule has only a disparate impact on CSS’s religious beliefs. CSS has urged the Court to overturn Employment Division v. Smith and to rule that in matters of religious free exercise, a law that has merely an incidental effect on a religious practice, and is not targeted at religion, should nonetheless be subject to strict judicial scrutiny.

But doing so would contravene the Court’s approach to all other constitutional rights. And it would have the same problem that conservatives have identified with disparate impact rules with respect to race, sex, and speech. Virtually any government contract would be subject to a constitutional challenge by anyone who claims a religiously based objection to adhering to its terms. Orthodox Jewish caterers could demand a government contract to provide food to the military and insist on serving only kosher foods; Catholic firefighters could refuse to respond to calls from a Planned Parenthood clinic; and Rastafarians could assert a right to smoke marijuana on the job. Because courts have long held that they cannot judge the validity of religious beliefs, there is no limit to the challenges that could be filed. As Justice Scalia wrote in Smith, such an approach would “permit every citizen to become a law unto himself.”

Outside the matter of religious freedom, there is not a single conservative justice who has dissented from these three basic tenets—the Constitution’s limitation to negative rights, the state’s authority to set the terms for its own business, and the notion that a law’s disparate impact is insufficient to violate the Constitution. To uphold CSS’s challenge, then, the Court’s conservative justices would not only have to rule that religious freedom includes the right to inflict discriminatory harm on others—an argument the Court has rejected in the past. They would also have to transgress three of their most hallowed jurisprudential premises. No one has advanced a principled argument for treating religious freedom claims differently with respect to these premises. So if the conservatives carve out a religious freedom exception, it will suggest that they are willing to adhere to conservative constitutionalism only when it leads to a result they like.

It is possible that, recognizing this conundrum, the Court will seek to resolve this case much as it did Masterpiece Cakeshop, with a narrow ruling that government officials exhibited antireligious hostility in this particular instance. But the evidence of religious hostility is extremely thin; the trial court, after three days of testimony, found that the city’s antidiscrimination policy long predated its application to CSS, that the city would not have tolerated discrimination by any contractor, and that its actions were not motivated by religious hostility. The court of appeals unanimously affirmed that decision. CSS points to the fact that the city investigated only religious contractors about this practice, that a Philadelphia official, in a conversation about the contract, appealed to CSS to follow the “teachings of Pope Francis,” and that the city council criticized CSS’s practice as “discrimination that occurs under the guise of religious freedom.”

But Philadelphia investigated only religious contractors because, having learned that CSS and Bethany Christian Services were unwilling to certify same-sex couples because of their religious objections to doing so, it had no reason to believe that any other contractors practiced such discrimination. The appeal to Pope Francis was at most a misguided effort, by one Catholic to another, to find common ground in order to save the contract. And when the city council’s resolution is read in its entirety, it’s clear that the phrase “under the guise of” was just a clumsy way of describing what CSS seeks—a right to discriminate in the name of religious freedom. Any inference that these remarks show antireligious hostility is rebutted by the fact that the city continues to pay CSS $17 million a year to provide non-certification-related foster care support, and that it continues to contract with Bethany to certify families, despite its views on marriage, because Bethany was willing not to impose them while carrying out the government’s program.

So there may be no easy escape route for conservatives who are torn between their sympathy for religious freedom claims and the jurisprudential commitments they have insisted upon in other constitutional matters. This case will therefore be the first of many tests that will tell us what kind of conservatives the conservative justices really are.

—November 4, 2020