Justices united on Fulton; no happiness

The Supreme Court’s unanimous ruling Thursday in favor of religious freedom over a hypothetical scenario in which a Catholic charity might deny a same-sex couple’s request to foster a child was, it would seem, a win for everyone.

Here’s why: Catholic Social Services, the plaintiff in Fulton v. City of Philadelphia, can go back to helping children find foster homes and will not (for now) be forced to abridge their religious beliefs or abandon the heroic work they’ve done for decades.

Same-sex couples can continue to foster children through 29 other Philadelphia agencies that have no religious restrictions.

As it turns out, no same-sex couple had actually sought the services of CSS when the city of Philadelphia severed its contract with that agency following a Philadelphia Inquirer report about the organization’s policy.

So, who’s not happy? Oh, just about everybody.

The crux of the case was whether CSS was discriminating against same-sex couples in violation of the city’s Fair Practices Ordinance. In the court’s opinion, Chief Justice John Roberts Jr. wrote: "The refusal of Philadelphia to contract with CSS for the provision of foster care services unless it agrees to certify same-sex couples as foster parents cannot survive strict scrutiny, and violates the First Amendment." (Strict scrutiny is the legal standard that laws or regulations must further a "compelling government interest" and must be narrowly tailored to achieve that interest.)

Roberts also noted that same-sex couples have other options. If a same-sex couple were to approach CSS, the agency would simply refer them elsewhere. In an interesting twist, CSS doesn’t object to certifying gay or lesbian individuals as single foster parents or to placing gay or lesbian children. Roberts wrote that even the "weighty" consideration of gays’ rights to "dignity and worth" can’t justify denying CSS an exception for its religious exercise.

Religious liberty advocates concede that the CSS victory ultimately may prove ephemeral. A different set of facts could be presented in a future challenge, resulting in a different outcome. This is precisely why liberal justices were able to get onboard with Roberts’s side of the argument and why the more-conservative members of the court — Justices Samuel A. Alito Jr., Neil Gorsuch and Clarence Thomas — were disappointed by the narrow scope of the ruling.

Conservatives were disappointed that the court chose not to overrule a precedent from the 1990 Employment Division v. Smith case, which held that laws that only incidentally burden religion and that were essentially neutral and generally applicable weren’t subject to "strict scrutiny." Conservatives had hoped the court would overturn Smith in Fulton, which would have been a bigger triumph for religious liberty advocates.

Alito wrote scornfully that Roberts’s opinion was based on a procedural glitch and "might as well be written on the dissolving paper sold in magic shops." The ruling was "a wisp of a decision that leaves religious liberty in a confused and vulnerable state," he added.

Who knew? Alito is one of those guys who looks like he’s daydreaming about creek fishing with his grandpa when he’s really plotting an assassination.

Gorsuch similarly took aim at the court’s "studious indecision" about Smith. He wrote: "Perhaps our colleagues believe today’s circuitous path will at least steer the Court around the controversial subject matter and avoid ’picking a side.’" So much for majority unity. On the other side, where the religion of nondiscrimination can be as uncompromising as many other faiths, city officials and LGBTQ advocates and lobbyists are upset by the outcome, even though nothing has changed by it, except that CSS can go back to helping continue to help children now. Where’s the harm? Not one gay or lesbian individual or couple will suffer because one fosterscreening agency, hypothetically, would now refer them to another, nonreligious organization. This falls under the dictum: Go to another bakery.

I suppose one can conclude that when the justices rule unanimously, not much has really happened. And we may as well admit that justices are people, too. Gorsuch’s contempt notwithstanding, picking sides can be agonizingly complex, especially when one’s moral grounding is in conflict with secular ambitions.

This must be why the founders created a First Amendment to guide us, seemingly in the hope that future generations would lean heavily toward religious liberty as often as possible.

This go-around, I’d say the justices did OK.