Berkley Center

In the summer of 1992, after the Supreme Court handed down its much-anticipated ruling in Planned Parenthood of Southeastern Pennsylvania v. Casey, legal philosopher Ronald Dworkin pronounced, “The Center Holds!” in his commentary about Casey. That “center” was formed by three justices—Justices Sandra Day O’Connor, Anthony Kennedy, and David Souter—who authored a joint opinion declining to overrule Roe v. Wade. At the same time, the joint opinion revised Roe’s framework to allow more governmental regulation throughout pregnancy. Dworkin predicted that Casey might “prove to be one of the most important Court decisions of this generation,” not only because it “reaffirmed and strengthened” Roe’s reasoning, but also because the three authors of the joint opinion were appointed by Republican presidents and two had expressed reservations about Roe in the past. The joint opinion’s approach to interpreting the Constitution and, particularly, the “promise of liberty” under the Due Process Clause, was at odds with that of their four conservative colleagues (Justices Rehnquist, Scalia, Thomas, and White), who strenuously dissented from the Court’s retaining Roe.

Nearly 30 years later, does the 9-0 ruling in Fulton v. City of Philadelphia (2021)—that the City of Philadelphia was in violation of the Constitution by ending its contract with Catholic Social Services (CSS), which refused to consider same-sex couples as potential foster care parents because of its religious beliefs about marriage—indicate a “center” with respect to instances in which religious liberty is in evident conflict with LGBTQ rights? Similar to Casey, the Court also declined to overrule a controversial precedent, Employment Division v. Smith.

Does the 9-0 ruling in Fulton v. City of Philadelphia (2021) indicate a 'center' with respect to instances in which religious liberty is in evident conflict with LGBTQ rights?

At first glance, such unanimity is unprecedented in cases involving this conflict. The landmark marriage equality decision, Obergefell v. Hodges (2015), authored by Justice Kennedy, was a 5-4 opinion, with the conservative dissenters (including Chief Justice Roberts) warning about the negative consequences for religious liberty. Although Masterpiece Cakeshop v. Colorado Civil Rights Commission (2018), authored by Kennedy, was decided 7-2, that lineup was only possible because Kennedy decided the case on a narrow ground: the commission’s supposed “hostility” toward Jack Phillips’ religion and its failure to treat his beliefs in a neutral and respectful manner. The opinion put off to another day how to resolve the merits: Under what circumstances would a business owner deemed a “public accommodation” have to serve a customer when doing so conflicted with their sincere religious beliefs? 

The unanimous ruling in Fulton might seem even more surprising than the then-startling 6-3 opinion in Bostock v. Clayton County (2020), in which the conservative Justice Gorsuch, joined by the four liberal justices and Chief Justice Roberts, interpreted Title VII’s prohibition on discrimination because of sex to include sexual orientation and gender identity. Tellingly, however, in this landmark ruling in favor of LGBTQ rights, Gorsuch put to the side the issue of how claims of religious liberty might collide with statutory mandates of non-discrimination—an issue more clearly raised in Fulton.  

I am skeptical that the 9-0 vote in Fulton indicates a “center” on that issue. The apparent unanimity conceals considerable disagreement among the justices, including over the constitutional landscape formed by Obergefell and Masterpiece Cakeshop. Further, the 9-0 ruling was likely possible only because Chief Justice Roberts’ opinion itself avoided reaching many questions, among them whether to revisit and overrule Smith. Authored by Justice Scalia, Smith held that when the government has a “generally applicable” law or regulation and enforces the law neutrally, the government’s action is presumptively legitimate, even if it has some “incidental” adverse impact on a religious group or person.

The apparent unanimity conceals considerable disagreement among the justices, including over the constitutional landscape formed by Obergefell and Masterpiece Cakeshop.

Roberts, joined by the three liberals—Justices Breyer, Sotomayor, and Kagan—and two conservatives—Justices Kavanaugh and Barrett—stated that it was not necessary to revisit Smith since Philadelphia had unconstitutionally burdened CSS’s “religious exercise” through contract terms that were not “generally applicable.” Roberts focused on the fact that a clause in the city’s contract, which states that government contractors like CSS shall not reject a prospective foster parent or child based on “sexual orientation,” also allows for an exception granted in the “sole discretion” of the commissioner. Citing Smith and other First Amendment cases, Roberts reasoned that the contract is not “generally applicable”; as a result, the city could not refuse to allow an exemption to CSS without a “compelling reason.” Roberts also avoided deciding whether the city treated CSS’s religion with “hostility,” as CSS had argued.

The evident unanimity is fractured by the fact that three of the Court’s conservatives—Justices Alito, Gorsuch, and Thomas—joined only in the judgment, not Roberts’ opinion. Alito and Gorsuch penned concurring opinions (joined by Thomas) calling for overruling Smith. In a lengthy analysis, Alito argued that keeping Smith “leaves religious liberty in a confused and vulnerable state.” How has it been confused and vulnerable these past 30 years when it has seemed stronger than ever?

Where, then, is the “center”? Perhaps Roberts wrote such a narrow opinion to appear nonpartisan or consensus-building. Perhaps he did so to gain the votes of the three liberals—Justices Breyer, Kagan, and Sotomayor. They, in turn, may have taken a pragmatic approach in joining Roberts’ narrow opinion, rather than dissenting from a broader opinion less protective of LGBTQ rights and of anti-discrimination law more generally. On the current Court, there are no longer four liberal justices to ally with a moderate or conservative to form a 5-4 majority in favor of LGBTQ rights. Thus, a ruling in favor of Philadelphia was very unlikely; as some commentators observe, Breyer, Kagan, and Sotomayor may have been seeking to limit the damage.

Perhaps Roberts wrote such a narrow opinion to appear nonpartisan or consensus-building. Perhaps he did so to gain the votes of the three liberals.

Is a sign of a “center” that Justice Barrett parted company with three of her conservative colleagues to join the chief justice’s opinion and also to write a concurring opinion arguing that there was no reason to decide—in the current case—whether to overrule Smith and that doing so would require the Court to “wrestle” with difficult questions about what kind of test would replace Smith? It is too early to tell. One possible reason for Barrett’s position might be that, as a protégé of the late Justice Scalia, she was reluctant to strike down one of the most famous precedents written by one of her inspirational figures—and particularly during her first term on the Court. But that may not be probative of future cases. 

Another puzzle about whether a “center” holds concerns Fulton’s import for local and state anti-discrimination laws. It is encouraging that Roberts quotes Justice Kennedy’s words from Masterpiece Cakeshop: “our society has come to the recognition that gay persons and gay couples cannot be treated as social outcasts or as inferior in dignity and worth.” Further, Roberts quotes those words in admitting that Philadelphia’s interest in the “equal treatment of prospective foster parents and foster children” is “weighty.” But he then concludes: “On the facts of this case, however, this interest cannot justify denying CSS an exception for its religious exercise,” because the contract allows exceptions and the city offered “no compelling reason” for denying CSS an exception. Roberts reasoned that the city contracts with many other foster care agencies willing to certify gay couples and that CSS is willing to refer gay couples to them. 

One part of the opinion that’s not so narrow is where Roberts concludes that providing foster care does not fit within Philadelphia’s public accommodations law. In Masterpiece Cakeshop, a bakery was deemed a public accommodation, or something open to the public that provides goods and services. However, Roberts concludes that foster care provision is not a public accommodation, because of the selection and screening process. This is a matter of concern for states and cities that have broad public accommodations laws that protect against discrimination on the basis of sexual orientation and gender identity, along with more traditional categories like race, sex, religion, and national origin. 

One part of the opinion that’s not so narrow is where Roberts concludes that providing foster care does not fit within Philadelphia’s public accommodations law.

But suppose states or cities have more specific anti-discrimination laws tailored to government contractors or include anti-discrimination provisions in the contract? Another reason a “center” is elusive is that Roberts’ opinion in Fulton does not address whether religious entities like CSS have broad First Amendment rights to an exemption from such laws or clauses and whether there are any limits to such exemptions. By comparison, this was a topic of keen interest during the oral argument. As I elaborate elsewhere, several justices drew analogies to religiously motivated race discrimination, asking questions like: “What if a religiously motivated social service provider didn’t want to certify as foster parents an interracial couple?” 

Given the tenor of the oral argument, it is striking that Fulton avoids these line-drawing questions and the analogy to racism and race discrimination. Not entirely, however. Justice Alito, who enlisted the rhetoric of bigotry—a focus of my book Who’s the Bigot? Learning from Conflicts over Marriage and Civil Rights Law—in his often-quoted Obergefell dissent, did so as well in Fulton. In his Fulton concurrence, Alito writes: “Suppressing speech—or religious practice—simply because it expresses an idea that some find hurtful is a zero-sum game…lumping those who hold traditional beliefs about marriage together with racial bigots is insulting to those who retain such beliefs.” Alito quotes both from Obergefell’s majority opinion and from Masterpiece Cakeshop to insist that “traditional beliefs about marriage” are “decent and honorable” and should not be equated with “racism, which is neither.” 

In my view, Alito’s rhetoric of bigotry in Fulton suggests continuing opposition to Obergefell because of its impact on religious liberty, even as he enlists Obergefell to defend religious liberty. Consider that, in dissenting from a denial of certiorari in the case of Kentucky clerk Kim Davis, Alito joined Justice Thomas’ criticism of Obergefell for suggesting that persons with “sincerely held religious objections to same-sex marriage...espoused a bigoted worldview” and for creating “victims” because of its “cavalier treatment of religion.”

Given the tenor of the oral argument, it is striking that Fulton avoids these line-drawing questions and the analogy to racism and race discrimination. Not entirely, however.

Finally, another difficulty in discerning a “center” is the import of the Court’s robust protection of religious liberty in First Amendment challenges brought against pandemic-related restrictions issued by state governors. In those cases, the Court has been extremely supportive of claims that religious activities are being unconstitutionally “targeted” and treated more harshly than “comparable” secular facilities, discounting what seem to be logical, public health reasons for different treatment. This suggests that one reason some conservative justices may deem it unnecessary to overrule Smith is that it is possible to offer robust protection of religious liberty within the Smith framework by expanding ideas of what it means to “target” religion or not treat it “neutrally.” It remains to be seen how the reasoning in those cases translates into other contexts, like claims of religious exemptions to anti-discrimination laws.

It is not clear that there is a stable “center” concerning the intersection of religious liberty and LGBTQ rights. If I were to hazard a guess, I would say the future of religious liberty (as religious conservatives see it), given the current Court, continues to look bright. The climate for LGBTQ rights is cloudier, although Obergefell, for the time being, seems secure. So, too, does Masterpiece’s recognition of the legitimacy of state anti-discrimination laws protecting LGBTQ persons against discrimination in the marketplace. As is so often true with attempting to read tea leaves about the Court, much will depend on the next case. Encouragingly, the climate for LBGTQ equality is far better under the Biden administration than under Trump; there are also encouraging developments in Congress. At the state and municipal level, however, the United States is a checkerboard of red and blue, and 2021, so far, has seen a record number of bills targeting transgender persons. The struggle for liberty and equality will continue to be pursued state-by-state and locality-by-locality.