Fulton and the Art of Cooperation: Religious Freedom as a Public Good

By: Richard W. Garnett

July 26, 2021

U.S. Religious Freedom and LGBTQ Rights

Every person, because he is a person, enjoys a natural human right to religious freedom. This right is not a concession by, or gift from, political authorities; it is, instead, grounded in the dignity of persons. A just and decent political community will affirm, protect, and support it and its exercise through laws and policies. Such a community will appreciate the fact—and it is a fact—that religious freedom is necessary both for its well-being and for human flourishing.

The United States, in our Constitution and in many other ways, does appreciate, and long has appreciated, this fact. There is, of course, no denying that American officials and governments have fallen short, time and again, in the tasks of vindicating the religious freedom rights of persons, groups, and institutions and of supporting appropriately their religious exercise. It is also clear that reasonable disagreements have always existed and will certainly continue about religious freedom’s content and boundaries. Still, as President Clinton once observed, echoing many scholars, religious freedom is our “first freedom,” not merely because it is guaranteed by (what turned out to be) the First Amendment to our Constitution but because it reinforces—and indeed is essential to—all the others.

As President Clinton once observed, religious freedom is our ‘first freedom,’ not merely because it is guaranteed by the First Amendment to our Constitution but because it reinforces—and indeed is essential to—all the others.

And yet, this freedom has become contested and even controversial. It gets the “scare quote” treatment in many of our leading media organs and outlets. It is seen increasingly as a partisan tool, as a disingenuous ploy, and as something being “weaponized” in service of this or that nefarious, invidious end. From reading the relevant coverage and commentary, one would imagine that religious freedom disputes and proposals invariably involve “culture war” moves and disagreements about marriage, sexual morality, bioethics, or COVID-related restrictions. 

This is not, in fact, the case. Headlines notwithstanding, a religious liberty case or controversy is much more likely to involve a prisoner’s diet, an Indigenous community’s sacred land, or an employee’s religiously mandated garb than, say, a contraception coverage requirement or a wedding vendor’s objections to participating in the celebration of a legal same-sex marriage. It is a grave mistake for citizens to suppose that religious minorities’ right to religious freedom is not vulnerable or that it must necessarily be subordinated either to current policy preferences or even to principled commitments.

It is a grave mistake for citizens to suppose that religious minorities’ right to religious freedom is not vulnerable or that it must necessarily be subordinated either to current policy preferences or even to principled commitments.

Now, in some ways, the Supreme Court’s recent decision in Fulton v. City of Philadelphia feeds into inaccurate narratives about and misguided suspicions regarding religious freedom. In that case, the justices agreed unanimously that the City of Philadelphia violated the First Amendment by excluding Catholic Social Services (CSS) from providing foster care services on the ground that it does not certify same-sex couples as foster parents. Although there was no evidence that any such couple had ever, in fact, sought certification from CSS, no evidence contradicting CSS’s assurance that it would refer any such couple to another agency, and no evidence that CSS’s practice had ever prevented any such couple from participating in foster care, the story of the Fulton case was, for the city, and became, for many, a story about “discrimination”—indeed, in the city council’s view, about invidious discrimination “under the guise of religious freedom.”

All nine justices agreed that the city’s treatment of CSS was not the result of the application of a neutral and generally applicable policy, and all nine agreed that it was not necessary to accomplish a compelling government interest. This welcome unanimity sends a clear message to activists, citizens, and officials alike that reasonable balancing is possible, and must be pursued, between the aims of anti-discrimination laws and the religious freedom of crucial social service providers.

This welcome unanimity sends a clear message to activists, citizens, and officials alike that reasonable balancing is possible between the aims of anti-discrimination laws and the religious freedom of crucial social service providers.

The enterprise of protecting religious freedom would be straightforward and simple if all members of a political community agreed about our obligations to God and to each other or if governments did not do very much. In our communities, though, people disagree—sincerely and reasonably—about things that matter. And, governments do a lot. Conflicts, therefore, between some official actions and some religious commitments are inevitable. The law must manage these conflicts, in ways that are predictable and transparent, without denigrating those who dissent from the majorities of the moment or whose aims and aspirations depart from official policy.

Fulton’s clear ruling will not put an end to disagreements between those who endorse an expansive and expanding understanding of the role and reach of anti-discrimination law and those who continue to embrace longstanding teachings regarding marriage, family, and sexuality. To cursorily label as “bigotry” or “discrimination” the determination of persons or groups to act in accord with what they regard as—indeed, what they know to be—the truth is an unworthy strategy for negotiating these disagreements.

To cursorily label as ‘bigotry’ or ‘discrimination’ the determination of persons or groups to act in accord with what they regard as—indeed, what they know to be—the truth is an unworthy strategy for negotiating these disagreements.

Although some (including Justice Alito and his two colleagues who joined his concurring opinion) have said that Fulton was narrow and inconsequential, the Court’s decision set up at least two guideposts that should help with this navigation going forward.

First, the justices indicated through their ruling their rejection of several prominent scholars’ argument that the First Amendment prohibits religious accommodations and compromises that result in asserted “third-party harms.” After all, if Philadelphia’s exclusion of CSS was, under the circumstances, unconstitutional, it can hardly be the case that the Constitution required it. We should read Fulton as supporting the important point that protecting and respecting religious freedom is an entirely appropriate—crucial, in fact—aim of entirely secular governments and that doing so need not be costless to be permitted. Religious freedom for all is a public good. It is, like clean air and water, an essential aspect of a healthy political ecology and something in which we all, believers and nonbelievers a like, have a stake. The fact that maintaining this ecology results in some inconvenience, costs, or compromise does not justify abandoning, let alone prohibiting, the effort.

We should read Fulton as supporting the important point that protecting and respecting religious freedom is an entirely appropriate—crucial, in fact—aim of entirely secular governments and that doing so need not be costless to be permitted.

Second, and related, the Court made it clear that although securing “equal treatment of prospective foster parents and foster children” is a “weighty” public interest, its pursuit did not override CSS’s religious freedom. That is, the city did not, and presumably could not, show that respecting the freedom and self-determination of this particular faith-based social service agency, given all the circumstances, would undermine—let alone stymie—the city’s general promotion of its understanding of egalitarianism. This step in the Court’s reasoning should be seen as a rejection of the commonly made argument that practices like CSS’s impose “dignitary harms” that governments have a compelling interest in preventing in every case.

Agencies like CSS provide, and have provided for centuries, vital services to vulnerable persons and communities. Governments may and should cooperate with such agencies and should not purport to set terms for admission to the field of good works that exclude them or demand that they sacrifice their integrity in exchange for permission to do what they have long done. There are reasons to hope that the Fulton case will facilitate such productive cooperation.

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