Old quotes by Pope Francis in a new documentary saying that gay people are “children of god and have a right to a family” and supporting the creation of “civil union” laws for gay couples so they are “legally covered” are not moving anti-gay groups to drop their lawsuit, Fulton v. Philadelphia, seeking the right of Catholic Social Services (CSS) of Philadelphia to discriminate against gay couples in foster care.
The Supreme Court and its new 6-3 conservative majority will hear oral arguments in the case on November 4, the day after the election that will deliver its verdict on President Donald Trump who put half of the conservatives on the high court.
This monumental civil rights case went unmentioned in the debate over the nomination of Amy Coney Barrett as Democrats avoided her radical views on “religious freedom” and focused instead on her opposition to the Affordable Care Act — coming before the court a week later — and to the court decisions opening marriage to same-sex couples.
Philadelphia Catholic foster care charity proceeds with Supreme Court challenge to city’s nondiscrimination ordinance
The high court will be deciding whether generally applicable laws can be ignored if an individual has a religious objection to them. All civil rights laws — federal, state, and local —would be undermined if the court sides with Fulton affecting not just LGBTQ people, but all protected classes. All someone would have to do if they objected to employing or providing a service to someone who was Black, female, or disabled, for example, is cite their “religious” objection to doing so.
On the chopping block in Fulton is the court’s landmark 1990 decision in Employment Division v. Smith that let Oregon deny unemployment benefits to two members of the Native American Church who ingested peyote, an illegal drug, in their religious ceremonies. In the majority opinion, Justice Antonin Scalia — for whom Barrett worked and who she said is her “originalist” role model — wrote that granting the plaintiffs the right to use illegal drugs “would open the prospect of constitutionally required religious exemptions from civic obligations of almost every conceivable kind — ranging from compulsory military service to the payment of taxes to health and safety regulation such as manslaughter and child neglect laws, compulsory vaccination laws, drug laws, and traffic laws; to social welfare legislation such as minimum wage laws, child labor laws, animal cruelty laws, environmental protection laws, and laws providing for equality of opportunity for the races.” But Barrett said in her confirmation hearing, “I am not Justice Scalia.”
Sharonell Fulton, a Catholic foster mother, wants Catholic Social Services to be able to receive city money for its foster care and adoption services while violating Philadelphia’s anti-discrimination laws and only work with parents who are Catholic and in heterosexual married couples or single and non-gay. Lower federal courts have affirmed the city’s right to enforce its laws banning its contractors from discriminating. (New York has similar laws. Religiously-affiliated contractors must certify that they will abide in their provision of services by city and state laws banning bias on a variety of bases including sexual orientation and gender identity. Catholic and Orthodox Jewish agencies make these certifications.)
Now that the pope has publicly affirmed gay families is Catholic Social Services abandoning their suit?
In response to questions regarding the impact of Francis’ statement on their case, the Becket Fund for Religious Liberty, attorneys for Fulton, responded with a statement from the Catholic Archdiocese of Philadelphia, stating, “There has been much recent attention paid to comments attributed to the Holy Father in a documentary that premiered in Rome this week. It is important to note that the remarks appeared in the context of a film and not a Church teaching document. Further, the references involved civil unions. The Holy Father has consistently affirmed the Sacrament of Marriage as a union between one man and one woman on many occasions just as he has affirmed the need to treat all people with respect and dignity. The recent comments underscore the Holy Father’s previous calls for pastoral and cultural sensitivity to the many different journeys of those who walk through life around us.”
Rick Esenberg, president and general counsel for the Wisconsin Institute for Law & Liberty who is representing the interests of the Catholic Archdiocese of Milwaukee in the case, wrote in an email, “The Pope’s comments have no impact. When presented with a claim that a person’s religion would be substantially burdened by a law, a Court is not free to inquire whether a person’s position is theologically correct or sanctioned by some religious authority. It must accept it. Even were the Pope to formally change Catholic doctrine in the context of an interview — and it is our understanding that that is not typical practice — what would remain important is the Plaintiff’s claim that her faith is burdened by the challenged requirement.”
The lead respondents in the case — the American Civil Liberties Union, representing the Support Center for Child Advocates and Philadelphia Family Pride, and Neal Katyal, the acting solicitor general under President Barack Obama who is representing the city of Philadelphia — declined to comment on the effect of the Pope’s remarks.
But Patrick Elliott, senior counsel of the Freedom From Religion Foundation, which is helping contest Fulton’s suit, wrote in an email, “I do not think this will change anything related to the Fulton case. Even if Catholic Social Services was disobeying directions from Pope Francis, the Supreme Court would not delve into the proper interpretation of Catholic doctrine. So as long as CSS expresses a desire to continue to discriminate against same-sex couples who want to participate in the city’s foster care program, the case will proceed. Of course, if CSS had a change of heart that would moot the case.”
CSS did not return Gay City News’ call.
Jennifer Pizer, law and policy director for Lambda Legal who is representing LGBTQ youth organizations in their amicus brief in the case, said that she hoped Catholic Social Services would “take seriously the guidance from the Pope.” But she said the high court justices “should not be affected” by the pronouncements of Francis any more that by those of the more conservative Pope Benedict XVI.
James K. Riley, a New Jersey attorney who filed an amicus brief on behalf of 27 Catholic lay persons supporting the city of Philadelphia’s position, said, the pope’s sentiments reflect those of “millions of Catholics” and are “a great step.”
He added, “Nobody is asking Catholic Social Services” to affirm “sacramental marriage” for gay couples.
Father Bernárd Lynch, an out gay priest, therapist, and theologian, now lives in his native Catholic Ireland where abortion and same-sex marriage were legalized by referendum, but he pointed out that doesn’t mean people have to believe they are “moral.”
He said, “What the pope says is important, but is not ‘the word of God.’”
Lynch said he would say to Catholic Social Services, “You have no right to impose your morality on anybody. You are bound by the law of the land.” He added that when religious people start saying they are not bound by civil law, “there’s no difference between that and Sharia law.”
Separation of church and state had been a longstanding American principle and quality — allowing organized religion to thrive in contrast to the ways in which it has withered in many countries in Europe with state religions. An increasingly conservative Supreme Court has been chipping away at that separation in recent years — most startlingly in its 2014 Hobby Lobby ruling that found that the closely held private company could claim a religious exemption from complying with the contraceptive coverage requirements of the Affordable Care Act.
Evan Wolfson, pioneer in the fight for same-sex marriage since the 1980s and counsel in this case for the National Women’s Law Center and 35 additional organizations that filed an amicus brief, said, “You are entitled to believe what you want. The problem is that you can’t have law where everyone gets to impose their own religious beliefs — or beliefs cloaked in religion — as a special exemption from following the law.
Wolfson worries about Justices Barrett, Samuel Alito, and Clarence Thomas.
“They are intolerant and extreme” on these issues, he said. “But we have to be hopeful. If we lose this case we have to keep fighting.”
Wolfson is now on the board of Take Back the Court whose mission sates, “To restore the right to vote, ensure reproductive freedom, protect workers, halt our climate emergency, and save democracy, Congress must add seats to the US Supreme Court.”
Vice President Joe Biden has said he will appoint a bipartisan commission to look at the make-up of the federal courts, but it is the responsibility of the Congress to set the number of federal judges and circuits at all levels, including the US Supreme Court.
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