The Maine Chapter of the Freedom From Religion Foundation is appalled by the Supreme Court’s recent decision in Fulton v. Philadelphia that grants religious privilege to Catholic Social Services at the expense of the LGBTQ community.

Philadelphia did not renew its contract with CSS because it violated the city’s anti-discrimination policy by refusing to place foster children with same-sex couples. Catholic Social Services sued, claiming religious freedom allows them to provide foster care placements and violate the city’s anti-discrimination laws.

Many conservatives hoped, and liberals feared, the Fulton decision would allow religious organizations to discriminate against anyone based on religious beliefs. However, the Court sidestepped the most crucial question the suit raised: Does religious belief take precedence over civil law?

Instead of answering the question, the Court narrowly focused on a provision in the city’s contract with CSS. Chief Justice John Roberts concluded the city violated Catholic Social Services’ religious freedom by including a provision allowing discretionary exceptions to the city’s nondiscrimination rules. Roberts claims the decision would only apply to this particular case based narrowly on the specific language in the contract. However, claiming limited applicability of a Supreme Court narrow decision has rarely proven to be the case.

Burwell v. Hobby Lobby (2013) asked, “Does the Religious Freedom Restoration Act of 1993 allow a for-profit company to deny its employees health coverage of contraception to which the employees would otherwise be entitled based on the religious objections of the company’s owners?” The Court decided yes, it did, but claimed the decision would have limited impact because the ruling only applied to privately held, for-profit corporations. Yet, the very next day, Wheaton College in Illinois, an evangelical nonprofit that is not privately held, was allowed to deny its employees contraception health coverage.

Justice Sotomayor dissented. She wrote, “Today’s injunction thus risks depriving hundreds of Wheaton’s employees and students of their legal entitlement to contraceptive coverage. In addition, because Wheaton is materially indistinguishable from other non-profits that object to the government’s accommodation, the issuance of an injunction, in this case, will presumably entitle hundreds or thousands of other objectors to the same remedy.”

“Though (the Fulton) ruling was limited to the facts of this specific case, it still demonstrates an alarming trend among justices of the court in their willingness to expand privileges to Christians,” says FFRF Legal Director Rebecca Markert. 

The conservative justices are willing to expand religious privilege to Christians. They just haven’t figured out how to reinterpret the Constitution and prior court decisions in a way that gives license to Christians without granting that same right to everyone else.

Reynolds v. United States (1878) established action taken on religious beliefs is unconstitutional if it violates established laws. “Laws are made for the government of actions, and while they cannot interfere with (religious beliefs), they may with practices.” The Court asked: “Suppose one believed that human sacrifices were a necessary part of religious worship; would it be seriously contended that the civil government (should not) interfere to prevent a sacrifice?” Making religious belief superior to established law would allow every citizen to become a law unto himself.”

Employment Division v. Smith (1990) established action taken based on religious beliefs must follow the law, so long as the rule applies equally to religious and secular actors. The Fulton plaintiffs explicitly ask the Court to overturn Smith.

These two cases established actions taken on religious beliefs are unconstitutional if they violate laws applied equally to religious and secular action. Justice Amy Coney Barrett would love to overturn Reynolds and Smith because it would encourage religious organizations to sue for religious privilege and win. The problem is courts could see a considerable increase in religious freedom cases such as Newman v. Piggie Park Enterprises (1968). The owner of Piggie Park claimed serving Black people violated his religious beliefs that “compel him to oppose any integration of the races.” The Court deemed the case frivolous but did not treat the similar Masterpiece Cakeshop vs. Colorado Civil Rights (2018) case as frivolous. The cake shop’s Christian owner claimed serving LGBT people violated his religious freedom. By not ruling this case as frivolous, the Court showed its willingness to entertain granting Christian plaintiffs religious privilege.

The question — Does religious belief take precedence over civil law — has not been answered yet because the Court consistently skirts the issue. One day the Court will answer the question. That answer will determine if America is a democracy or a theocracy.

Tom Waddell is president of the Maine Chapter of the Freedom from Religion Foundation. He welcomes comments at president@ffrfmaine.org