Fulton v. Philadelphia

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Once again, U.S. Supreme Court chooses to punt on a major religious liberty case

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Once again, U.S. Supreme Court chooses to punt on a major religious liberty case

Florist Barronelle Stutzman and Robert Ingersoll have shared many details from the 2013 conversation that changed their lives and, perhaps, trends in First Amendment law.

For nine years, Ingersoll was a loyal customer at Arlene's Flowers in Richland, Wash., and that included special work Stutzman did for Valentine's Day and anniversaries with his partner Curt Freed. Then, a year after the state legalized same-sex marriages, Ingersoll asked her to design the flower arrangements for his wedding.

Stutzman took his hand, Ingersoll recalled, and said: "You know I love you dearly. I think you are a wonderful person, but my religion doesn't allow me to do this."

In a written statement to the Christian Science Monitor, Ingersoll wrote: "While trying to remain composed, I was … flooded with emotions and disbelief of what just happened." He knew many Christians rejected gay marriage but was stunned to learn this was true for Stutzman.

As stated in recent U.S. Supreme Court documents: "Barronelle Stutzman is a Christian artist who imagines, designs and creates floral art. … She cannot take part in or create custom art that celebrates sacred ceremonies that violate her faith."

This legal drama appears to have ended with Stutzman's second trip to the high court and its July 2 refusal to review a Washington Supreme Court decision the drew a red line between a citizen's right to hold religious beliefs and the right to freely exercise these beliefs in public life. Supreme Court justices Clarence Thomas, Samuel Alito and Neil Gorsuch backed a review, but lacked a fourth vote.

"This was shocking" to religious conservatives "because Barronelle seemed to have so many favorable facts on her side," said Andrew T. Walker, who teaches ethics at Southern Baptist Theological Seminary.

Stutzman is a 76-year-old grandmother and great-grandmother who faces the loss of her small business and her retirement savings. She has employed gay staffers. She helped Ingersoll find another designer for his wedding flowers. In the progressive Northwest, her Southern Baptist faith clearly makes her part of a religious minority.

"Barronelle is a heretic because she has clashed with today's version of progressivism," said Walker.


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Lawsuits and scarce donors: Religious colleges could be facing tough years ahead

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Lawsuits and scarce donors: Religious colleges could be facing tough years ahead

A narrowly-framed Supreme Court victory — the Fulton v. Philadelphia case — will allow Catholic Charities (at least for now) to preserve religious conscience and avoid placing foster children and children available for adoption with same-sex couples, despite the city's non-discrimination statute.

However, this does not settle the many similar legal disputes the media will be covering the next few years.

In particular, reporters will want to carefully monitor Hunter v. U.S. Department of Education, a potentially huge lawsuit filed in Oregon federal court March 29. This is a class action with 33 plaintiffs represented by Portland attorney Paul Southwick, director of the Religious Exemption Accountability Project or REAP (paul@paulsouthwick.com and 503-806-9517). Alliance Defending Freedom, a familiar participant in such matters, has filed a bid to defend the religious schools (media@adflegal.org or 480-444-0020). There are questions about the degree to which the current Justice Department will help in this defense.

The suit charges that LGBTQ students suffer "abuses and unsafe conditions" at "hundreds" of U.S. religious colleges with traditional doctrinal covenants so government should cut off their financial aid. Except for Brigham Young University and the Church of Jesus Christ of Latter-day Saints, REAP's targets are Protestant, led off by Oregon's George Fox University, a venerable Quaker campus attended by Herbert Hoover when it was a mere secondary school. George Fox's mission statement declares that "we desire the presence of Christ to be at the core of all we do."

Others include the likes of Azusa Pacific University, Baylor University, Bob Jones University, Dordt University, Eastern University, Fuller Theological Seminary, Liberty University, Messiah University, Moody Bible Institute, Seattle Pacific University, Union University and Westmont College. (Notably missing: Calvin, Gordon, Wheaton.)

Loss of aid for students would be a severe competitive blow in coming years when all colleges and especially private and religious ones expect to suffer declines in the student-age population and thus in applications, this on top of the institutional damage wrought by COVID-19. There are also prospective attacks on such schools' tax exemption and academic accreditation over sexuality. The status of athletic programs is also a hot-button issue.


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How will this Supreme Court decide, or sidestep, pivotal religious liberty questions?

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How will this Supreme Court decide, or sidestep, pivotal religious liberty questions?

The major U.S. Supreme Court ruling in Fulton v. Philadelphia (.pdf here) allows a Catholic agency to avoid placing foster-care children with same-sex couples. Importantly, the Catholics will place gay children and will place children with gay singles since there's no conscience crisis over defying the church's doctrines on marriage.

For decades there's been confusion and acrimony over the court's applications of the Constitution's ban on government "establishment of religion," but now disputes over the religious "free exercise" clause grab the spotlight. The Fulton ruling sidestepped the heart of this generation's conflagration between religious rights and LGBTQ+ rights and, thus, may even have added logs to the fire.

The justices backed the Catholic claim with what The Economist's headline correctly labeled "The 3-3-3 Court." The narrow technical grounds for the decision enabled the three liberals (Stephen Breyer, Elena Kagan, Sonia Maria Sotomayor) to make the ruling unanimous. The conservatives were split between three demanding a thorough overhaul of "free exercise" law (Justice Samuel Alito, in a vigorous 77 pages, joined by Neil Gorsuch and Clarence Thomas) and three unwilling to take the plunge at this time (Chief Justice John Roberts and the two newest members, Brett Kavanaugh and Amy Coney Barrett).

Similar caution apparently underlies the court's majority decision this week not to review transgender student Gavin Grimm's victory against his Virginia school over bathroom access.

Journalists should prepare for more years of extensive -- and expensive -- politicking and litigation before the Supreme Court defines -- or decides not to define -- how First Amendment guarantees apply in 21st Century culture.

For those on the religion beat, it is easy to see that this case has hardened the related conflict among major denominations.


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