Religious liberty vs. LGBTQ rights: Supreme Court will soon rule in case affecting both

The U.S. Supreme Court is poised to rule in a case with significant implications for the culture war waged over religious liberty. Fulton v. City of Philadelphia raises the question of where we draw the line between LGBTQ rights and religious dissent.

If the court delivers a victory for the religious party, it will exacerbate the growing perception that the justices are weaponizing religious freedom to protect Christian privilege against vulnerable groups. That Christian groups would benefit is no doubt true. But religious minorities also would benefit. Indeed, the legal theory the court would likely use to deliver that victory has its origins in protecting – not attacking – marginalized religious groups.

At issue in Fulton is Philadelphia’s partnership with private organizations – in this case, Catholic Social Services – to find homes for children in foster care.

Citing its religious beliefs, CSS refused Philadelphia’s demand that it certify and endorse same-sex couples as foster parents. In response, Philadelphia stopped sending foster care placement requests to CSS, prompting Catholic Services to sue.

In its lawsuit, CSS argues that Philadelphia’s actions violate the religious freedom protections under the First Amendment. Specifically, CSS has asked the court to revisit the standard created in the 1990 case Employment Division v. Smith, and either overrule it or strictly limit it.

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In Smith, the court ruled against two members of the Native American Church, Alfred Smith and Galen Black, who ingested peyote during their religious rituals. Peyote was an illegal substance under Oregon law. For this, Smith and Black were fired from their positions as counselors at a drug rehabilitation center and were barred from receiving unemployment benefits because of their workplace “misconduct.”

In an opinion written by the conservative stalwart Justice Antonin Scalia, the court said that the First Amendment’s religious freedom protections did not immunize Smith and Black from the consequences of criminal law. So long as a law applied to everyone (or is, in the court’s words, “neutral" and "generally applicable”), it is permitted.

The Smith decision prompted outcry from civil liberties groups and religious advocates because the broad discretion it gave the government meant that few religious claimants would win, particularly minority religious groups that have little political or social capital.

By letting governments burden religious exercise as long as they impose that same restriction on everyone, it diminishes the promise of the free exercise of religion, in which citizens are allowed to live out the tenets of their faith.

Support for RFRA has splintered

The outcry led to the near-unanimous passage of the federal Religious Freedom Restoration Act (RFRA) in 1993, to try to restore some of the religious freedom rights that Smith restricted.

In recent years, though, that bipartisan coalition has fallen apart. In 2014, the crafts giant Hobby Lobby brought a challenge under the Affordable Care Act’s contraceptive mandate, which required the conservative Christian owners of the crafts store to pay for the morning-after and week-after birth control pills in violation of the owners’ religious beliefs against facilitating abortion.

After the court ruled in favor of Hobby Lobby, many advocates on the political left denounced RFRA.

Today, a coalition of progressive groups prefer the Do No Harm Act, which they describe as an RFRA alternative that permits only those religious claims that do not impose third-party harms.

The Smith precedent also is becoming politicized. The same liberal civil liberties organizations who sought to overturn Smith in the 1990s now want to keep it. Meanwhile, religious conservatives are agitating to overturn Smith. Fulton gives them the opportunity to do just that.

There’s another possibility, too. CSS has asked that if the court chooses not to overrule Smith, that it strictly limit Smith’s reach by guaranteeing what some scholars have dubbed the “most favored nation” status to religious exemptions.

Under the most-favored-nation approach, a judge finds that a law is not neutral and generally applicable if it includes any exception to its rule. Not comparable exceptions, but any exceptions.

For example, in Pennsylvania, the law requires foster home studies to consider the marital status or disabilities of the potential foster home. CSS argued that because Philadelphia makes these exceptions to its rule that foster agencies cannot turn away potential foster families, the city must also make an exception for CSS’ religious beliefs.

Religious liberty advocates have used the same argument in a number of other cases, and actually developed the theory in a series of cases involving religious minorities.

Justice Alito decided 2 relevant cases

The most-favored-nation approach was used successfully in two cases decided by Justice Samuel Alito when he was a federal appellate judge. In one case, two Muslim police officers challenged their department’s rule that its officers be clean-shaven.

The rule had two exceptions – one for undercover officers and another one for men who suffered from a medical condition that made it difficult to shave. The Muslim officers' lawyer argued – and the court accepted – that because the rule had exceptions, it was not neutral and generally applicable.

Lawyers made a similar argument in another case decided by Alito; that case involved a Native American man who kept a wild bear on his property.

Outside Alito’s court, the most-favored-nation approach helped Santerian priest Jose Merced in vindicating his religious rights to animal sacrifice. Officials in Euless, Texas, prohibited the practice and said that the sacrifices violated the city’s interest in public health and animal treatment – even as its regulations carved out broad exemptions for secular activities such as hunting, fishing, meat production and veterinary euthanasia. Merced’s lawyers argued that because the law had these exceptions, it had to make exceptions for Merced’s religious exercise.

Whether the Supreme Court uses Fulton to overrule Smith or solidify the most-favored-nation theory, the expansion of religious liberty has roots in cases defending religious minorities.

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But given the politicization of religious freedom in recent years, the court’s First Amendment approach will certainly be interpreted through a culture war lens. That is, as yet another tool to help the court’s conservative majority institutionalize Christian privilege and weaponize it against marginalized minorities.

That has been the response most recently when the court applied the theory in its cases involving COVID-19 regulations on religious exercise. On April 9, the Supreme Court held that even though secular in-home gatherings were restricted the same way religious ones were, regulations on in-home religious gatherings violated the Free Exercise Clause because they treated essential businesses more favorably.

“It is no answer that a State treats some comparable secular businesses or other activities as poorly or even less favorably than the religious exercise at issue,” the court said. What matters is that “any comparable secular activity” is treated “more favorably than religious exercise.”

The response to the decision was swift; a sample headline: “The Christian right is racking up huge victories in the Supreme Court.”

The framing, though, elides how minorities are protected by the same legal protections now being extended to Christians. Though so much of our religious liberty conversation today is about pitting the rights of privileged Christians against the rights of minorities so that only one can win, the reality is far more complicated.

And if we are not careful, the most vulnerable religious groups will be a casualty of the culture wars.

Asma T. Uddin is the author of "The Politics of Vulnerability: How to Heal Muslim-Christian Relations in a Post-Christian America." Andrew R. Lewis is associate professor of political science at the University of Cincinnati. He is the author of "The Rights Turn in Conservative Christian Politics: How Abortion Transformed the Culture Wars."

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This article originally appeared on USA TODAY: Supreme Court: LGBTQ, religious groups await Fulton v. Philadelphia