Fulton v. City of Philadelphia

Justice Sotomayor to Respondents (1:36:34): If one wanted to find a compromise in this case, can you suggest one that wouldn't do real damage to all the various lines of law that have been implicated here?

Lawrence Sager and Nelson Tebbe: Government is faced with two competing and important obligations: the duty to ensure that groups vulnerable to structural injustice are treated equally, and the duty to respect the boundaries of conscience and intimacy. Equality norms must be observed, but at the same time space must be preserved for individuals and institutions to form and pursue their independent interests and ideologies. Guided in important part by this Court, the nation has found a durable and just approach to meeting these competing duties.

Many public accommodation laws make explicit exception for churches and clergy in appropriate circumstances, and virtually all of them make more general allowances for private clubs. Houses of worship may exclude members on grounds that otherwise would be impermissible. In employment, the ministerial exception gives religious organizations the ability to employ religious leaders without regard to employment discrimination law. Outside religious leadership, Section 702 of Title VII allows religious organizations to preferentially employ members of the faith over nonmembers, despite the ordinary rule prohibiting discrimination against workers on the basis of their religion. In housing law, the “Mrs. Murphy” exception to the Fair Housing Act protects landlords who have only a small number of units and who live in the same building as their tenants. Such landlords are free to exclude tenants on grounds that housing discrimination laws would otherwise prohibit. These are just salient examples of a pervasive web of arrangements that harmonize traditional religiosity with the demands for equal citizenship embodied in the Second Reconstruction.

This mapping of a public domain that demands equality, and an in-turning private domain founded on conscience and intimacy, should not be taken to put the rights of members of the LGBTQ community on one side and those of religious groups on the other. To be sure, in this case, the two are opposed. But religious groups are among the most important beneficiaries of constitutional and statutory demands for equal treatment. The flourishing of religion and religious diversity in the United States has in no small measure depended on these guarantees of equality.

The claim of the religious agency in this case is extraordinary and deeply inconsistent with this settled and successful approach. CSS claims the right to work on behalf of the City of Philadelphia in vetting foster care parents, notwithstanding its blanket refusal to consider the applications of same sex married couples. If this Court were to require the City to embrace CSS as its agent in this case, the City — all cities — would also have to embrace public service providers who discriminate against Baptist families, or Jewish families, or Catholic families, or (as Justice Barrett suggested) mixed-race families. There is no principled basis for distinguishing among these forms of discrimination. An outsized claim of liberty — the right to discriminate while working on behalf of the City — would swallow equality, to the great detriment of all vulnerable groups, including and especially religious groups.

There is nothing abstract about the threat to religious equality implicated in CSS’s claim here. There is at this moment a case pending in the lower courts in which the largest child placement agency in South Carolina, Miracle Hill, refuses to place children with prospective parents who do not hold orthodox Christian beliefs, by the agency’s lights.