Constitutional Law

Religious Bigotry Is Trying To Cross The Rubicon

If religious bigotry can deny foster children in a government program access to the best available caregivers, there is probably not much else religious bigots cannot take.

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This is obviously a big week for the United States. In addition to the election — the importance of which cannot be stressed enough — oral arguments will take place this Wednesday in Fulton v. City of Philadelphia, a monumental First Amendment free exercise clause case. One reason Fulton is so consequential is because the Supreme Court is using the facts of the case to decide whether to overturn nearly three decades of precedent going back to Employment Division v. Smith. And because overturning Smith has been a dream scenario for religious conservatives, this new super-conservative religious court looks poised to do it. But the Fulton case is also unique for its extraordinary difficult-to-ascertain facts.

Here are the facts as best as everyone I have seen can make them out. The City of Philadelphia operates a government foster care program whereby the city contracts out with private foster agencies. These private agencies then do the work of selecting a qualified foster family. What is still unclear is whether the choice of foster family made by the private agency is subject to a potential veto by the city’s Human Services officials. Determining whether the private agency or the city gets to ultimately choose the foster home that any given child will go to is vitally important to understand. For example, if the private agencies are choosing the foster family it would mean that the foster children are in what’s called a captive market. Generally, a foster child cannot legally avoid being put up for foster care to a private agency the government contracts out with. As Ilya Somin puts it in Reason: “Unlike people in search of a baker or a photographer, children in the foster-care system generally don’t have the option of simply taking their ‘business’ elsewhere.”

The foster children being in a captive market matters because the issue in Fulton involves a religious organization that wants to operate within the city’s foster program but is refusing to place any child with a qualifying same-sex couple. No matter how suitable a same-sex couple is to the needs of the foster child, this religious organization will refuse them, because of bigotry. Of course, the religious organization will say such refusals are out of “love.” I personally find this reasoning to be a particularly revolting form of casuistry, more so because those who think this way are not simply content to keep their views to themselves but instead seek to force others to live by their beliefs. Take this case, even if the city ultimately decides (which is not clear), the refusal to place or consider placing foster children with qualified same-sex couples amounts to nothing less than gratuitous interference in that foster child’s life. As I have discussed before, foster children derive obvious and substantial benefits both economically and psychologically from being placed with qualified same-sex couples. Gratuitous interference with these benefits is bigotry, the fact that it is religiously motivated does not make it any less so. But I digress.

This Fulton case is not an easy one, but only because of the personal bias and the political makeup of the court which is sympathetic to granting religion, and to the exclusion of nonbelievers, extraordinary favor under the law. Indeed, it can only be explained by bias and bigotry that we have a federal standard where nonbelievers can be disenfranchised from being able to address their own legislatures or marry couples in private ceremonies, and forced to financially support religious monuments and speech. All while religion is being granted greater privilege under the First Amendment than political speech. For any who are not aware, political speech has, since the founding of this country, been considered to be at the core of First Amendment protection. So, if religion can be used to interfere with a foster child’s access to the best available caregivers, or is considered to be above your political speech, then there is not much else this court will not let religious bigots take from you.

To be clear, I have no quarrel with, and have in fact advocated for, religious organizations being able to enforce their beliefs, despite general applicable law, within their own organizations. But the important distinction in the Fulton case is that the Supreme Court seems poised to abandon viewpoint neutrality which has dominated religious liberty cases for decades and declare that religion enjoys a privileged status, outside of its own organizations, and above all other social and political perspectives. But with a court that was already on track to make religion, in effect, a country unto itself even before Amy Coney Barrett’s ascension, the only way to stop or reverse this likely course is to add members to the court and eliminate the influence of those who wish to allow the religious beliefs of others to strip you of benefits under the law and your ability to dissent.

Tyler Broker is a practicing attorney whose work has been published in the Gonzaga Law Review, the Albany Law Review, and the University of Memphis Law Review. Feel free to email him or follow him on Twitter to discuss his column.

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