Editor’s (moderator’s) note. In early November the US Supreme Court heard oral arguments in a case brought by a Catholic Social Services of Philadelphia seeking to opt out of the city’s requirement that social service agencies serve clients irrespective of race, creed or sexual orientation. It was one of the very first cases heard after Justice Amy Barrett joined the court, and it has profound implications.
One of them, ironically enough, seems to be whether allowing certain religious organizations to opt out of human rights ordinances of general applicability can lead to a sort of de facto establishment of those religions to the detriment of other faith traditions or the public at large. Frankly, I think it’s a stretch but some of the comments I’ve heard from Supreme Court justices — for example Justice Alito’s remark quoted below — border on white Christian nationalism. It’s enough to cause the American Civil Liberties Union to step up a PR campaign in advance of a decision warning people of all faith traditions. So I’m filing excerpts here from an especially persuasive statement by the head rabbi at Philadelphia’s Congregation Rodeph Shalom, in case I need them later.
Background: oral argument
The case is styled Fulton v. Philadelphia. It arose in 2018 when the city of Philadelphia learned in 2018 that Catholic Social Services, a foster care services provider affiliated with the Roman Catholic Church, would not certify same-sex couples as suitable parents for children in the city’s foster care system. The city stopped referring foster parents to them, and CSS sued. Neal Katyal, the city’s attorney, says the stakes of the case extended to virtually all government services. Which means if the court’s ruling is too broad, it could allow discrimination against minority religions as well as LGBTQ+ couples.
“I don’t think the framing of this as religion versus same-sex equality is the right one,” Katyal said Nov. 4 in oral argument, saying it could more aptly be described as “religion versus religion.” But the culture warriors on the court sounded predisposed to rule for Catholic Social Services. Tucker Higgins, covering the hearing for CNBC, reported:
[…] the court’s conservatives seemed to think that Philadelphia had an ulterior motive and was not being respectful of CSS’ religious beliefs. Justice Brett Kavanaugh, who was appointed by Trump, told Katyal it appeared Philadelphia was “looking for a fight” and “created a clash.”
“If we are honest about what is really going on here, it’s not about ensuring that same-sex couples in Philadelphia have the opportunity to be foster parents,” said Justice Samuel Alito, an appointee of President George W. Bush.
“It’s the fact the city can’t stand the message that Catholic Social Services and the Archdiocese are sending by continuing to adhere to the old-fashioned view about marriage,” Alito said.
Barrett suggested that she viewed Philadelphia as overreaching.
She asked Katyal whether a state could take over hospitals and force the doctors to perform abortions.
Katyal responded that the reason Barrett’s hypothetical sounded so bad was the premise that a state could take over hospitals in the first place, which he suggested was not analogous to Philadelphia’s role in the foster care system, and raised distinct problems.
On the other hand, it’s notoriously difficult to predict the court’s eventual ruling from the tenor of oral argument, and there were indications it might not be as clear-cut as the ACLU fears. An Associated Press story, picked up by Channel 3 CBSN Philly, reported:
With the addition of three appointees of President Donald Trump, Justices Neil Gorsuch, Brett Kavanaugh and Amy Coney Barrett, the court would seem poised to extend protections for religious objections to anti-discrimination laws.
Kavanaugh, for his part, suggested Wednesday there should be a way for Catholic Social Services to continue to work with foster families. The case, Kavanaugh said, requires the justices to think about how to balance “very important rights” the court has recognized: religious rights and the right to same-sex marriage.
“It seems when those rights come into conflict, all levels of government should be careful and should often, where possible and appropriate, look for ways to accommodate both interests in reasonable ways,” he said.
But Kaytal’s point was compelling. If faith-based organizations are freely allowed to opt out of laws of general applicability — like human rights protections — it could lead to discrimination one faith-based group against other faith traditions. The point is not hypothetical. There have been cases in South Carolina where precisely that occurred, and prospective Jewish and Catholic foster parents were turned away by a Protestant foster care provider.
On November 4, the Supreme Court heard a case that could allow private agencies that receive taxpayer-funding to provide government services — such as foster care providers, food banks, homeless shelters, and more — to deny services to people who are LGBTQ, Jewish, Muslim, or Mormon.
One of the ACLU’s most thought-provoking arguments was put forth by Rabbi Jill Maderer of Philly’s Congregation Rodeph Shalom, who shared it to the ACLU website at https://www.aclu.org/news/lgbtq-rights/people-of-minority-faiths-could-be-turned-away-from-taxpayer-funded-programs/. It is excerpted below.
Rabbi Jill Maderer, verbatim excerpts:
Any moment now the Supreme Court could issue a decision that would permit taxpayer-funded government programs to turn people away because they are Jewish, Muslim, Mormon, or otherwise do not meet a government contractor’s religious requirements.
In Fulton v. City of Philadelphia, a taxpayer-funded foster care agency, Catholic Social Services (CSS), asked the court to rule that it has a constitutional right to opt out of the city’s non-discrimination requirement that applies to all foster care agencies and turn away prospective foster families headed by same-sex couples. CSS says because it has a religious objection to certifying same-sex couples as foster parents, the right to religious liberty entitles it to discriminate while providing this government service.
If the court agrees with CSS, those most directly affected will be children in foster care — wards of the government — who deserve care from all families who meet child welfare standards. The stakes are also high for LGBTQ+ families, who could face discrimination not only by foster care agencies but in all sorts of other contexts should the court rule that non-discrimination requirements cannot be enforced against discrimination that is religiously motivated.
These issues are of profound concern for many people of faith, including Reform Jews. The Torah’s repeated command to care for the widow and orphan teaches us to care for the most vulnerable among us, who include children in foster care. And we understand the Torah’s teaching in Genesis that God creates human beings “B’tzelem Elohim” (in the image of God) as embracing a broad, inclusive community, including LGBTQ+ people. As Rabbi Hilly Haber put it, “[o]ur sages hold before us a vision of a broad, inclusive community, one which powerfully links together the love of God and the loving work of human beings.” For many Reform Jews and other religious communities, LGBTQ+ equality is a critical expression of our belief in the dignity and worth of all people and, thus, a fundamental tenet of our faith.
The concern[s] about the implications for discrimination against people because of their faith are not hypothetical. CSS has a religious objection to accepting same-sex couples, but agencies elsewhere have religious objections to accepting foster families that do not share their faith. For instance, the largest taxpayer-funded foster care agency in South Carolina accepts only evangelical Protestant Christian families and has turned away Catholic and Jewish families.
The arc of American Jewish history reminds us there was a time when the Jewish community was explicitly told “Jews Need Not Apply.” This painful history is shared by other minority faith communities. In the 21st century, no religious minority — or any community — should be told they are not welcome, especially when seeking to participate in taxpayer-funded government programs.
Rabbi Jill Maderer is the senior rabbi at Congregation Rodeph Shalom in Philadelphia, one of the nation’s oldest synagogues, dating back to 1795.
Tucker Higgins, “Supreme Court leans in favor of Catholic adoption agency that won’t work with LGBT couples,” CNBC, Nov. 4, 2020 https://www.cnbc.com/2020/11/04/supreme-court-leans-in-favor-of-catholic-foster-agency-that-refuses-to-work-with-g.html.
Rabbi Jill Maderer, “People of Minority Faiths Could Be Turned Away From Taxpayer-Funded Programs,” ACLU News and Commentary, April 27, 2021 https://www.aclu.org/news/lgbtq-rights/people-of-minority-faiths-could-be-turned-away-from-taxpayer-funded-programs/.
“Supreme Court Likely To Side With Catholic Social Services Agency In Philadelphia Same-Sex Foster Parent Dispute,” Channel 3 CBSN Philly, Nov. 4, 2020 https://philadelphia.cbslocal.com/2020/11/04/supreme-court-likely-to-side-with-catholic-social-services-agency-in-philadelphia-same-sex-foster-parent-dispute/.
[Revised and published, May 14, 2021]