On Wednesday, a day after the election, the U.S. Supreme Court will hear a case, Fulton v. City of Philadelphia, that could radically alter the landscape of LGBTQ rights. And with Amy Coney Barrett aboard, this highly conservative Court is likely to use Fulton to start chipping away at laws that protect LGBTQ people and instead put “religious freedom” first.
To anyone keeping track of the ways conservative Christians have refused to acknowledge the rights of LGBTQ people, the story behind Fulton v. City of Philadelphia is depressingly familiar. A conservative religious group—in this instance, Catholic Social Services—doesn’t want to follow the law and wants its bigotry accommodated by the state. It’s just like the cases where the evangelical baker didn’t want to make a cake for a same-sex couple, the conservative Christian didn’t want to arrange flowers for a same-sex wedding, and so on.
Catholic Social Services (CSS) places children with foster parents in Philadelphia. The city gives them taxpayer dollars to do so. The city also has a Fair Practices Ordinance that prohibits discrimination on the basis of gender identity, sex, and sexual orientation, among other things. Despite that law, Catholic Social Services wants to take taxpayer dollars but still refuse to place foster children with same-sex couples because the Catholic Church disapproves of homosexuality.
This sort of thing should be a slam dunk: If you don’t follow the anti-discrimination law, you can’t have federal money. Your religion isn’t a magical shield against the law. However, it’s no longer that simple because both the Trump administration and the Supreme Court have declared that “religious freedom” is superior to everything else, including laws prohibiting discrimination.
CSS is represented by the Alliance Defending Freedom, an anti-LGBTQ hate group masquerading as a law firm. Along for the ride are several conservative states and a pile of conservative legislators, including Sens. Tom Cotton and Ted Cruz.
The Trump administration also asked the Court for permission to appear at oral argument, saying the government is “well positioned to address the reconciliation of such anti-discrimination efforts with the freedom of religion protected by the First Amendment.”
That’s a lie. The administration doesn’t want in because they want to reconcile conservative religious demands with anti-discrimination laws. They want in because they want to push religious discrimination. Thus far, the administration has intervened in various courts to argue LGBTQ people shouldn’t have workplace protections, to back a school that fired a teacher because they’re gay, and to say a child of married gay parents was “born out of wedlock” to a surrogate in Canada and therefore isn’t a citizen.
This isn’t reconciliation. It’s a straightforward attempt to impose a narrow, restrictive, bigoted religious worldview on everyone else. And, given the Court’s composition and the way some conservative justices have ruled on recent cases, it’s likely to succeed.
CSS argues the free exercise clause of the First Amendment prevails over laws that protect LGBTQ people from discrimination. They get to that in a uniquely weird way. They start by saying the Catholic Church believes marriage is only between a man and a woman, then add onto that a refusal to place children with cohabiting unmarried couples, presumably because such behavior is sinful. Then, they pivot to say that since the church doesn’t believe in same-sex marriage, it doesn’t exist, and same-sex married people are actually cohabitating unmarried couples.
As bad as those arguments are, the arguments from conservative Catholic organizations who filed friend-of-the-court briefs are worse. One argued that CSS promotes diversity by placing children with Christian homes. as if that isn’t a thing that happens routinely. The same organization also argued that it doesn’t hurt same-sex couples if CSS won’t place children with them because they can just go to a different agency.
That view has become standard among religious conservatives: LGBTQ rights aren’t at risk when the social services agency or cake baker or workplace refuses people service and dignity because they can just go somewhere else.
Except that’s not how rights work. Anti-discrimination laws are designed to be applied neutrally—they apply to everyone. That’s precisely what Philadelphia has argued to the Supreme Court in its briefs: The nondiscrimination law is neutral and applies to all foster-care agencies who take public money.
For its claim to succeed, CSS has to show it was treated differently specifically because of its religious views. Simply not being allowed to engage in your religious bigotry isn’t sufficient. In that way, this case is theoretically different than 2018’s Masterpiece Cakeshop case.
In that case, there was the tiniest bit of evidence the Colorado Civil Rights Commission was motivated by anti-religious bias against the baker who wouldn’t make a cake for a same-sex couple. Literally one commissioner made one comment saying, “freedom of religion and religion has been used to justify all kinds of discrimination throughout history.”
Here, there was no evidence Philadelphia officials were motivated by anti-Catholic bias. Instead, they tried to find common ground with CSS and eventually reached an agreement with another group that had refused to place children with same-sex couples.
No matter what the result in Fulton, this isn’t going to stop. Religious conservatives are going to keep teeing up these sorts of cases. The florist who doesn’t want to make flowers for a same-sex couple? Conservatives are pushing the Court to hear that case too. Justices Clarence Thomas and Samuel Alito got mad that the Court wouldn’t hear the case of the Kentucky clerk who refused to issue same-sex marriage licenses and functionally called for the Court to throw out Obergefell v. Hodges, the 2015 decision that legalized same-sex marriage.
Cases like these are designed to create a world where one type of religion—conservative Christianity—will always override the rights of LGBTQ people. It’s a narrow, cramped, bigoted view, and it’s not one supported by most people. But these days, it’s one supported by most of the Court.