By Zalman Rothschild
The U.S. Supreme Court is poised to decide a case this term that, once again, pits religious freedom against the rights of the LGBTQ community. Earlier this month, Justice Clarence Thomas, in a concurrence written on behalf of himself and Justice Samuel Alito, attacked Obergefell v. Hodges, the decision that established a constitutional right to LGBTQ marriage. His criticism revolved around its cost to religious opponents: If gay couples have a constitutional right to marriage, the thinking goes, those who oppose gay marriage on religious grounds may be compelled to assist such marriages despite their sincerely held religious convictions to the contrary. This, in turn, makes it “increasingly difficult to participate in society.” Thomas expressed his wish that when there is a clash, religious freedom should outweigh LGBTQ rights.
Thomas may well have his wish granted this upcoming term, especially now that Justice Amy Coney Barrett has joined him on the bench. It is precisely the collision of LGBTQ rights and religious freedom that is at issue in a case scheduled for argument in front of the Court next week. In the case, Fulton v. City of Philadelphia, a Catholic adoption agency challenges the city of Philadelphia for refusing to contract with it after the agency made it known that it would not work with gay couples.
The agency argues that the city’s refusal to contract with it constitutes discrimination against religion. It contends that despite Philadelphia’s anti-discrimination laws, the city itself considers various factors—including religious, economic, and racial considerations—when determining the placement for a child. If the city may take these factors into consideration in service of the “best interests” of the child, the agency opines, then prohibiting a Catholic adoption agency from considering the sexual orientation of potential adopting couples in the name of “religious belief” should be unconstitutional. According to the agency, if Philadelphia provides any exceptions to its general anti-discrimination policy, it must provide exceptions to that rule to religious adoption agencies as well. To not do so, the agency argues, constitutes religious discrimination, which is a violation of religious freedom as guaranteed by the free-exercise clause of the First Amendment.
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