Laura Lane-Steele is a Forrester Fellow at Tulane Law School, where her research focuses on sex and gender in American equality law and family law. Prior to joining Tulane Law School, Lane-Steele was an associate at Steptoe & Johnson LLP, focusing on complex civil litigation across many areas of law.
Fulton v. City of Philadelphia is now the second case in three years in which the Supreme Court could have addressed whether anti-discrimination laws must yield to religious beliefs under the Free Exercise Clause. And for the second time, the Court issued a very narrow ruling instead of answering this question directly. Both Fulton and the prior case, Masterpiece Cakeshop (MPC), held in favor of the party seeking a religious exemption, but on grounds that are narrow and fairly fact-specific. Fulton’s holding is limited to cases involving contracts requiring non-discrimination with discretionary exemptions, and MPC is limited to situations in which adjudicators express hostility toward a religious belief.
Many wonder why the Court agrees to hear these cases if it is going to issue fact-bound, narrow rulings instead of tackling the larger question presented by these cases. I offer one possible reason here: Many conservative justices have yet to find a satisfactory way to distinguish race from sexual orientation. That is, although these justices may be inclined to hold that the Free Exercise Clause requires a religious exemption to laws prohibiting discrimination based on sexual orientation, they are struggling to craft a holding that would not require the same exemption for race. These justices may be able to reason their way to such a holding. But to do so, they might need to betray some principles they hold dear—namely, a text-based approach to statutory interpretation and a desire to avoid judicial overreach.
Many wonder why the Court agrees to hear these cases if it is going to issue fact-bound, narrow rulings instead of tackling the larger question presented by these cases.
The justices are clearly interested in the race analogy. In both the Fulton and the MPC oral arguments, the justices repeatedly asked various iterations of this question: Would this case be different if the religious belief at issue resulted in race discrimination rather than sexual orientation discrimination? For the side advancing the religious freedom position, the answer to this question was always yes, it would be different: If race were at issue, they would lose. Conservative justices who want to rule in favor of this position, therefore, may need to craft a holding where the anti-discrimination statute yields to religious freedom when it comes to sexual orientation but not for race.
There are clues that (at least some) conservative justices want to deal with this issue by distinguishing religious beliefs that support racial discrimination as bad or immoral from those that support discrimination based on sexual orientation as respectable. Specifically, in Obergefell, Justice Kennedy went out of his way to say that religious-based objections to same-sex marriage are “decent and honorable.” And then, in both the MPC and Fulton oral arguments, Chief Justice Roberts and Justice Alito, respectively, used Obergefell’s language to differentiate between the “decent and honorable people” who have religious-based objections to same-sex marriage and the dishonorable people who oppose interracial marriage for religious reasons. Indeed, the MPC opinion itself suggests that merely drawing an analogy between religious beliefs that justify opposition to same-sex marriage and religious beliefs that justified slavery and the Holocaust shows unconstitutional hostility toward the anti-same-sex marriage religious view—indeed, a major repercussion for making a historically accurate analogy.
Would this case be different if the religious belief at issue resulted in race discrimination rather than sexual orientation discrimination?
But, as these justices know, the Constitution does not allow them to answer the race question by separating “good” religious views from “bad” ones. The First Amendment bans courts from analyzing free exercise claims differently depending on the perceived morality of the particular belief. That is, the Court cannot treat religious beliefs about interracial marriage and same-sex marriage differently because they can’t make judgments about the legitimacy or the offensiveness of sincerely held religious beliefs.
If the justices cannot get around the race analogy based on the “honorableness” of the religious belief, the only other way these justices can distinguish race is if the state has better reasons to prohibit race discrimination than sexual orientation discrimination. This is the rationale religious freedom advocates used in oral argument to explain their position—namely, that the government has a more compelling interest in eradicating race discrimination that would overcome the free exercise claim, but that the state’s interest in eliminating discrimination based on sexual orientation is not sufficiently compelling.
This would not be an easy route for the conservative justices to take either because it may require them to deviate from principles they subscribe to—namely, the primacy of text in statutory interpretation and the proper role of the Court as an “umpire calling balls and strikes” rather than an activist Court supplementing its own judgment for that of the legislative branch. Here’s why: The state anti-discrimination statutes at issue in these cases prohibit discrimination on the basis of certain classes (race, sex, sexual orientation, etc.). Nothing in the text of the statutes themselves indicates that the state’s interest in preventing discrimination is more compelling for certain classes over others—the statute protects all of these classes on the same grounds. So, distinguishing race requires the Court to hold that the very same anti-discrimination statute is constitutional when applied to one class, but not other classes. But there is no precedent for slicing and dicing an anti-discrimination statute in this way—a way where the statute survives a free exercise challenge with regard to race discrimination but not with other types of discrimination.
Distinguishing race requires the Court to hold that the very same anti-discrimination statute is constitutional when applied to one class, but not other classes.
To be sure, race and sexual orientation are treated differently, but under a different constitutional doctrine. Under the Equal Protection Clause (which is not implicated in these cases), state laws are subjected to heightened scrutiny when they make racial classifications, but not when they make sexual orientation-based classifications. For example, race-conscious university admissions policies are subjected to heightened scrutiny because they treat people differently based on their race. Sexual orientation-conscious admissions policies that treat people differently based on their sexual orientation, on the other hand, would not be subjected to heightened scrutiny. But the justices cannot use this rationale to answer the race question either because this equal protection doctrine is simply not appliable here because the state is not treating people differently based on their race or sexual orientation—these statutes apply to people of all races, sexual orientation, sexes, etc., and protects all of these classes on the same grounds. So, either the state has a sufficiently compelling interest in preventing discrimination based on these enumerated classes or it doesn’t.
Analyzing an anti-discrimination statute differently depending on the class it protects defies the current approach to analyzing a statute’s constitutionality under First Amendment law. It also conflicts with the plain text of these statutes. Many members of the Court, and particularly the conservative justices, are self-avowed textualists, meaning that they place great weight on the text of a statute to determine its meaning. A plain reading of these statutes’ text, however, supports a conclusion that the state has an equally compelling interest in preventing discrimination against all the classes it included in the statute. Concluding that the state’s interest in prohibiting one type of discrimination over another, without any indication whatsoever from the text, strays from a principle many justices subscribe to.
Concluding that the state’s interest in prohibiting one type of discrimination over another, without any indication whatsoever from the text, strays from a principle many justices subscribe to.
Analyzing race and sexual orientation differently without any statutory authority could also be seen as judicial overreach. If the Court itself were making judgments about which classes the state has a compelling interest in protecting and which ones it doesn’t, it would arguably be substituting its own judgment for the state’s. This type of “judicial legislating” is frowned upon by many conservative members of the Court.
To be sure, some conservative justices may subscribe to textualism and advocate for judicial restraint only when it serves the outcome they want. But this is not always true, and some conservative justices have remained faithful to these principles even when their application produced an outcome at odds with their perceived political ideology (like Justice Gorsuch and the Bostock opinion, for example). Nevertheless, these considerations might explain why conservative justices have failed to address the race analogy head on (despite their demonstrated interest in it) and, in turn, may have something to do with the Court’s narrow holdings in Fulton and MPC.