What a court win for religious groups means for LGBTQ rights

·Senior Editor
·6 min read

“The 360” shows you diverse perspectives on the day’s top stories and debates.

What’s happening

The Supreme Court last week unanimously sided with a Catholic foster care agency in Philadelphia in a closely-watched case that may have significant implications for religious freedom and LGBTQ rights in the United States.

The case, Fulton v. City of Philadelphia, was brought to the court by Catholic Social Services, a religious foster care agency that had its contract with the city canceled because of its policy of refusing to place children with same-sex couples. In his majority opinion, Chief Justice John Roberts wrote that city officials had violated the agency’s right to free exercise of religion by “forcing it either to curtail its mission or to certify same-sex couples as foster parents in violation of its religious beliefs.”

Though the decision was 9-0 in the agency’s favor, there was division among the justices over just how far the ruling should go. The disagreement centered on how the case might affect Employment Division v. Smith, a landmark decision issued in 1990 that established the principle that governments can create laws restricting religious practice as long as those laws apply to the general public and don’t specifically target faith-based groups. Roberts was joined by five colleagues in issuing a narrow ruling that left Smith intact. Three conservative justices — Samuel Alito, Clarence Thomas and Neil Gorsuch — released a concurring opinion calling for Smith to be overturned.

Why there’s debate

The Fulton ruling is undoubtedly a win for religious-rights advocates and a setback for the cause of defending LQBTQ people from discrimination. There’s also broad agreement among legal experts that its impact is smaller than it might have been if a majority of justices had decided to overturn Smith. But some analysts still believe the case will lead to significant changes in how laws around discrimination and free exercise are interpreted.

Supporters of religious rights — many of them conservative Christians — say Fulton shows that the court’s new conservative majority is gradually chipping away at past precedent that has made religious freedom a second-class right in the eyes of the law. Some LGBTQ rights advocates say the ruling, and future decisions that may be right around the corner, could be interpreted as allowing widespread discrimination by faith-based businesses.

Others say Chief Justice Roberts went to great lengths to ensure that his opinion can’t be interpreted too broadly and the case may ultimately have little impact outside of this specific conflict between Catholic Social Services and Philadelphia city officials. That said, members of both groups see signs that there may be enough justices willing to overturn Smith and dramatically reimagine the nation’s laws around religious freedom in the near future — a result that would radically change how religious freedom is exercised in the U.S.

What’s next

The narrow decision handed down in this case all but guarantees that a more direct challenge to Smith will find its way to the court before too long, most legal analysts say. “Dodging the question today guarantees it will recur tomorrow,” Justice Gorsuch wrote in his concurring opinion for the case.


The decision is a clear win for religious freedom

“Religious actors shouldn’t be forced to leave their beliefs at the door to serve in the public square. By upholding the Constitution, the court made a commonsense ruling that is a win for religious believers and all those whom they serve.” — Emilie Kao, Philadelphia Inquirer

Decades of precedent that has prevented discrimination is being reversed

“There’s always a tension between liberty and equality. Any law that prohibits discrimination limits the freedom to discriminate. Our society, for decades, has made the choice that stopping discrimination is more important than the freedom to discriminate. What’s troubling about the case … is I think they’re saying discrimination is fine, especially against gays and lesbians, if it’s in the name of religion.” — Erwin Chemerinsky, Slate

The impact of Fulton is minor, but it signals a major ruling is coming

“It wasn’t a dramatic expansion of religious rights – not yet. … It suggests that when the broader question of whether religious groups have the right to discriminate does come before the justices, they will likely uphold religious liberty over gay rights.” — Morgan Marietta, The Conversation

The court will inevitably make it legal to discriminate against LGBTQ people

“Conservatives disagree about how to get there, but they’ve accepted the premise that state and local governments should be required to accept and tacitly endorse bigotry in the delivery of public services if religious organizations claim such bigotry is commanded by their faith. Whether Roberts does it with a thousand cuts or Alito is allowed to set off a bomb is a matter of tactics, not principle.” — Elie Mystal, The Nation

The court is correctly prioritizing the First Amendment over other rights

“Taken together, the First Amendment says that people can think what they want, say what they want, write what they want and gather together with other people in support of those beliefs. Chipping away at one element of those freedoms, even if the people punished hold unpopular beliefs, threatens all of them.” — Henry Olsen, Washington Post

The decision will affect more than just LGBTQ people

“Decisions like these have ripple effects that extend beyond just the group most immediately named. The Supreme Court ruling, for instance, could open the door for religious entities taking government dollars to turn away unwed mothers from doctor's offices, Jews or Muslims from homeless shelter spots and any number of other scenarios.” — Allison Hope, CNN

Expanding religious rights won’t only help Christians

“The Fulton decision, while securing a win for religious-liberty advocates, left open the potential to reverse the Smith precedent. A reversal of Smith has roots in historically bipartisan efforts to defend the rights of religious minorities, and many such groups would benefit from it.” — Andrew R. Lewis, Atlantic

The ruling won’t have much of a national impact

“It’s still a small win for religious conservatives and a similarly small loss for the LGBTQ community in Philadelphia. But the Court’s decision is unlikely to have many implications outside of that city.” — Ian Millhiser, Vox

The case shows the justices are immune to political pressure from the left

“Had the Supreme Court ruled differently, the case would have been heralded as a Pride Month win. But the Supreme Court unanimously saw things clearly. And this should give us hope that everything doesn’t have to be about sex and politics. Sometimes it can be about our common humanity and the needs of the most vulnerable.” — Kathryn Jean Lopez, National Review

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