by Sherry F. Colb
Having finally stopped hitting "refresh" on the electoral count on Friday, I decided to go out for a walk with my dog Blue and listen to the arguments in Fulton v. Philadelphia The case involves a Catholic organization that contracts with the government to help place children in foster care, and the question is whether the City may refuse to renew its contract with that organization because the latter refuses to consider same-sex couples for certification as potential foster families. In other words, though several Justices seemed unwilling to frame it in this way, the Catholic organization discriminates against gay men and lesbians applying to become foster parents.
In an argument that would have been amusing if it were not so appalling, we kept hearing about how no gay couple (or possibly only one gay couple) has applied to the Catholic organization to be certified as foster parents. I do not recall hearing anyone say it, so I will: of course a gay couple would not apply to an organization that refuses to consider gay couples. I imagine few African American students applied to matriculate at Stonewall Jackson Academy. I would think that if no person in an excluded category even tries to use the services of an institution after the institution has advertised its unwillingness to consider that category, the reasonable person would conclude that the place is plainly guilty of discrimination. Several Justices, however, seemed to think that the absence of applicants indicates that any belief that the place discriminates is entirely speculative. If you scare away all of the ____'s, then nothing bad has happened yet. Perhaps we could introduce the Justices to the First Amendment concept of "chilling effect." It's not just for speech.
Listening to the argument would leave many people puzzling, I suspect, over what aspect of it was most disturbing. Justice Alito's behavior would certainly make the top two or three. At one point, he sounded like a ball of aggression confronting Neil Katyal (whose performance was outstanding) with what the case is "really" about: "Look, if we -- if we are honest about what's really going on here, it's not about ensuring that same-sex couples in Philadelphia have the opportunity to be foster parents. It's the fact that 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. Isn't that the case?" The suggestion is that the City of Philadelphia is just plain intolerant of the message that only heterosexual couples should be married. By wishing to block this "message," perhaps Philadelphia was engaged in censorship? Katyal responded respectfully, but the accusation was stunning.
The Supreme Court has held that the Constitution protects the right of same-sex couples to marry and (just last term) that the law which prohibits sex discrimination in employment protects victims of sexual orientation discrimination as well. But both opinions, as well as Justice Thomas's concurring opinion (in which Gorsuch joined) in the Masterpiece Cakeshop case include language saying that religious practice might sometimes require compromise regarding the anti-discrimination principle applied to sexual orientation. Stated differently, even if you have the right not to be excluded on the basis of being gay, your employer's (or other service provider's) religious commitments may be entitled to an accommodation that amounts to an allowance for such discriminatory exclusion. Several Justices cited the "accommodate sexual orientation discrimination" language because Fulton is about a religious organization's discriminatory practice. As Katyal pointed out, of course, protecting religious organizations' freedom to discriminate (on behalf of the government) would mean that a religious organization could exclude members of other religions, not just gay people, and do we really want to have many different organizations, each with its own religious banner and accompanying exclusions, providing foster care evaluation and certification?
What about the Obergefell caveat in particular? It went as follows:
Finally, it must be emphasized that religions, and those who adhere to religious doctrines, may continue to advocate with utmost, sincere conviction that, by divine precepts, same-sex marriage should not be condoned. The First Amendment ensures that religious organizations and persons are given proper protection as they seek to teach the principles that are so fulfilling and so central to their lives and faiths, and to their own deep aspirations to continue the family structure they have long revered. The same is true of those who oppose same-sex marriage for other reasons.
What to do with that? Katyal is more polite than I am. Here is what I would have said in response to the reminder of Obergefell's language. I would have said that the Supreme Court in Obergefell included this language to reassure everyone's grandfathers that they needn't worry; nobody thinks they are bigots and homophobes. But you know what? That was a bit of a fib. The truth is that people who oppose same-sex marriage are bigots. Their bigotry receives greater social acceptance than that based on race or sex, but it is bigotry nonetheless. Yes, it is true, people invoke their religion as driving their opposition to same-sex marriage. It is also true, however, that up until the 1960's, many white churches opposed mixed-race couples and invoked their Christianity for that too.
Listening to Justice Alito, one could be forgiven for concluding that he thinks same-sex marriage itself poses a threat to his religious faith. It is likely that the only part of Obergefell that he liked was the portion showing respect for his faith-based homophobia.
Justice Kavanaugh, stylistically more gentle than Alito, said the following:
And to be clear, I fully appreciate the stigmatic harm. I completely understand that, fully appreciate it. But we need to find a balance that also respects religious beliefs. That was the promise explicitly written by the Court in Obergefell and in Masterpiece, explicitly promised that respect for religious beliefs. And what I fear here is that the absolutist and extreme position that you're articulating would require us to go back on the promise of respect for religious believers.
In other words, telling an organization not to discriminate on the basis of sexual orientation is "absolutist" and "extreme."
I understand that the Bible has some derogatory things to say about same-sex coupling, but it also has some nasty comments about unmarried women who cannot prove they are virgins: they must be stoned to death, according to Deuteronomy. A verse in Leviticus tells us that people with disabilities must not approach God to make an offering. What if a religious organization wanted to exclude unmarried nonvirgins and disabled people from qualification for certification as foster parents? Would anyone argue that the First Amendment protects the organization from being compelled to treat female virgins and nonvirgins equally?
And let us not forget Deuteronomy's injunctions regarding marriage to a conquered army's women:
When thou goest forth to war against thine enemies, and the Lord thy God hath delivered them into thine hands, and thou has taken them captive, And seest among the captives a beautiful woman, and hast a desire unto her, that thou wouldest have her to thy wife; Then thou shalt bring her home to thine house, and she shall shave her head, and pare her nails.
To those who believe I am bringing up irrelevancies, consider this: the Bible's vision of the women that men must marry (because everyone is mandatorily heterosexual) includes her virginity (if she is to avoid being stoned to death) and contemplates her being taken from the enemy, cleaned and deloused, and subjected to the embrace of a man whom she might well find completely unattractive and who might, on the battlefield, have killed the husband she loved. How confident is Justice Alito that while these aspects of his religion reflect a backward and primitive human community, the anti-gay language represents what is good and true and Godly, for now and forever?
It is only because religiously derived homophobia remains socially accepted in many circles that it would seem to anyone like demanding equal treatment for gay couples might violate an organization's religious freedom or be properly characterized as "absolutist" or extreme." Perhaps if Justices Alito, Kavanaugh, and Thomas were willing to conduct thought experiments that placed them in the vulnerable group instead of the group that judges others, they might let go of their impulse to identify with bigots. Maybe it would help if they faced the truth about the nice language in Obergefell: Justice Kennedy and the others were just humoring you. Homophobia is wrong, no matter what your basis for it might be. Just accept that some families are gay; you don't have to join them; just think of them as equally entitled to respect. They're here. They're queer. Get used to it, for God's sake.