Op-Ed: Giving people the right to discriminate on the basis of religious beliefs

Under long-standing constitutional law, religious beliefs do not provide exemption from civil rights laws and cannot be used as an excuse for discrimination.

Yet the Supreme Court Thursday in Fulton v City of Philadelphia ruled in favor of the ability of Catholic social services to participate in the city’s foster care program, even though this organization discriminates on the basis of sexual orientation. While the reasons for the court’s unanimous decision are narrow, the implications are broad and indicate a court that is inclined to allow discrimination based on religious beliefs.

The Fulton case concerns the city’s decision to refuse to contract with organizations that practice prohibited discrimination. Philadelphia regularly contracts with private social service agencies to help place children in foster homes. These agencies are “delegated” the power from the government to determine whether individuals meet the state’s requirements to become foster parents. Each contract is explicit in prohibiting these agencies from discriminating on the basis of race, gender, religion and sexual orientation.

Catholic Social Services has long been involved in this program, but in recent years has refused to do so due to a contractual requirement not to discriminate on the basis of sexual orientation. He says his religious beliefs prevent him from conducting inspections of same-sex couples or placing children with such couples.

The organization challenged the non-discrimination requirement as violating its 1st Amendment rights. The Federal District Court and the United States Court of Appeals for the 3rd Circuit rejected these arguments, but the Supreme Court overturned those decisions and ruled in favor of the agency.

In 1990, the court in Employment Division v. Smith ruled that the free exercise of religion is not an exception to a law of general application. In that case, the court rejected a request by Native Americans – based on their religious beliefs – for an exemption from a state law prohibiting the use of peyote. But the court also said laws cannot discriminate against religion.

Chief Justice John G. Roberts Jr., writing in the Fulton case, said Philadelphia law allowed exceptions and that discretion meant it was not a sufficiently general law. The possibility of discrimination in the exercise of this discretion, he writes, makes the Philadelphia requirement a violation of the free exercise of religion.

But there was no evidence that Philadelphia actually treated Catholic social services any differently from other social service agencies or used its discretion in an impermissible manner. And it’s interesting that even the liberal judges – Stephen G. Breyer, Sonia Sotomayor and Elena Kagan – did not raise this point. Perhaps they were happy to accept a restrictive decision rather than risk a decision that would change the law and open the door even further to discrimination based on religious beliefs.

I am concerned that this decision is part of a trend to extend protection for the free exercise of religion to the detriment of other crucial government interests. Earlier this year, the court found California violated the free exercise of religion by limiting the size of religious gatherings in homes, even though secular gatherings of the same size were restricted.

A few years ago there was the case of a baker who, due to his religious beliefs, refused to design a cake for a same-sex couple. In 2018, the court ruled in favor of the baker, but again on narrow grounds. There are many pending cases that raise the same issue involving florists, photographers, and stationers who refuse to serve same-sex couples due to the religious beliefs of the business owner. A year ago, the court ruled that Title VII of the 1964 Civil Rights Act protects workers from discrimination based on sexual orientation or gender identity. Many employers are now suing and claiming a religion-based right to discriminate against LGBTQ people.

The underlying question is of utmost importance. There is inherently a tension between freedom and equality. Any law that prohibits discrimination limits the freedom to discriminate. For more than half a century, the Supreme Court has held that ending discrimination is more important than protecting the right to discriminate. In fact, in Newman v. Piggie Park Enterprises in 1968, the court characterized as “patently frivolous” a challenge to the Civil Rights Act of 1964, which prohibits racial discrimination in public accommodation, on the grounds that it interferes with “free exercise. of the religion of the defendant.

During argument at Fulton, Breyer and Kagan asked if Philadelphia could refuse to contract with a social service agency that refused to place children in interracial couples because of its religious beliefs. The lawyer for Catholic Social Services immediately said the city could refuse to contract because it involved racial discrimination, while this case concerns discrimination based on sexual orientation. But there is no basis for this distinction: there is a compelling government interest in stopping both forms of discrimination.

While Thursday’s ruling doesn’t shatter any new legal foundation, it once again shows that the court protects freedom of religion even when it harms others. This could signal a dangerous and broader move by the courts to allow discrimination based on religious beliefs, especially against gays, lesbians and transgender people.

Erwin Chemerinsky is Dean of the Law School at UC Berkeley and a contributor to Opinion. He is the author of an upcoming book, “Presumed Guilty: How the Supreme Court Empowered the Police and Subverted Civil Rights”.