POLITICS
Church-State Divide at Risk Despite Pope’s Stance
Philadelphia Catholic charity proceeds with SCOTUS challenge to city’s anti-bias law
BY ANDY HUMM
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.
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
benefi ts 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
Newly minted Supreme Court Justice Amy Coney Barrett was unchallenged in her confi rmation
hearings on her views on religious exemption claims, but may now be a key vote on the issue of the
Philadelphia Catholic Social Services’ goal of discriminating against same-sex couples in providing
foster care services.
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 traffi c 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 confi rmation 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 affi rmed the city’s right to
enforce its laws banning its contractors
from discriminating. (New
York has similar laws. Religiouslyaffi
liated contractors must certify
that they will abide in their provision
REUTERS/ SAMUEL CORUM
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 certifi cations.)
Now that the pope has publicly
affi rmed 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 fi lm and not a Church
teaching document. Further, the
references involved civil unions.
The Holy Father has consistently
affi rmed the Sacrament of Marriage
as a union between one man
and one woman on many occasions
just as he has affi rmed 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
➤ CHURCH & STATE, continued on p.13
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