Senators, other pols and the news media are agog this week over the impact a Supreme Court Justice Amy Coney Barrett, age 48, might have on abortion law long-term and -- immediately -- disputes over the election results and a challenge to Obamacare that comes up for oral arguments November 10.
But reporters on the politics, law or religion beats shouldn't ignore Barrett's potential impact on the continual struggles between religious freedom claims under the Bill of Rights versus LGBTQ rights the Court established in its 2015 Obergefell ruling that legalized same-sex marriage. Oral arguments in a crucial test case, Fulton v. City of Philadelphia [19-123], will occur the day after Election Day — when journalists will be preoccupied with furious tabulation of absentee ballots.
At issue is whether Philadelphia violated Constitutional religious freedom in 2018 by halting the longstanding work of Catholic Social Services in the city's foster care system because church teaching doesn't allow placement of children with same-sex couples.
Such disputes first won media attention when Massachusetts legalized gay marriage and in 2006 shut down the adoption service of Boston Catholic Charities. which did not place children with same-sex couples. A prescient 2006 Weekly Standard piece by marriage traditionalist Maggie Gallagher explored the broader implications for religious agencies and colleges in free speech, freedom of association, employment law and tax exemption.
The Becket Fund, which represents the Fulton plaintiffs, produced this useful 2008 anthology covering all sides on these issues.
On October 5, the legal jousting heated up when Justice Clarence Thomas, joined by Justice Samuel Alito, issued a protest found within this memo (.pdf here).They dissented on Obergefell, but their chief concern now is that the court's ambiguity "continues to have ruinous consequences for religious liberty" that only SCOTUS itself can and must now remedy. A two-line Slate.com. headline typified reactions of the cultural Left:
Two Supreme Court Justices Just Put Marriage Equality on the Chopping Block
LGBT rights were already in jeopardy. If Amy Coney Barrett gets confirmed, they're likely doomed
Well, it's hard to imagine a Court with Barrett added would overturn Obergefell in its forthcoming Fulton decision. But the court will now address the religious liberty claims Obergefell sidestepped (tmatt column on that topic here) and, depending on how the ruling is framed, could have ramifications for those related issues Gallagher cited.
Fulton also raises the court's important 1990 ruling in Employment Division v. Smith, written by Barrett's mentor Justice Antonin Scalia. That decision said the Constitution does not protect religions against unwanted government regulations if they are neutral and apply to everyone.
The Guy as usual recommends that reporters ask WWDD (What Would Douglas Do), referring to eminent University of Virginia Law professor Douglas Laycock. He favors same-sex marriage, but represents conservative Christians and Orthodox Jews in urging the court to overturn the Smith precedent (.pdf here). He argues that government should show a "compelling interest" to limit religious freedom, as was the case before Smith.
The lineup of "friend of the court" briefs in Fulton neatly maps America's current cultural faceoff. Religious traditionalism and related religious freedom assertions unite the Catholic church, Southern Baptists and other evangelicals, the Church of God in Christ (the largest African-American denomination), Latter-day Saints, Orthodox Judaism, many religious colleges and large "parachurch," and "pro-family" organizations.
The opposite side encompasses non-Orthodox Jews, atheists, "Mainline" Protestants (e.g. Episcopal Church, Evangelical Lutheran Church in America, United Church of Christ) and the Baptist Joint Committee, supported by American Baptist Churches and key Black Baptist denominations.
On the politics, 39 states have filed in favor of one of the two sides, as did 47 U.S. Senators and 201 House members. The LGBTQ forces have potent establishment backing from the new American establishment, as in 32 corporations, the National League of Cities, U.S. Conference of Mayors, American Medical Association, American Psychological Association, American Bar Association and numerous law school professors (though some filed on the opposite side).
As a resource on a key related issue, don't miss the poignant testimony (.pdf here) from Philadelphia foster children and foster parent clients. Writers can access full Fulton documentation at the invaluable SCOTUSblog.