“Liberty finds no refuge in a jurisprudence of doubt.” Those words opened the Supreme Court’s opinion in Planned Parenthood v. Casey, and though they were used in the dreadful context of preserving a constitutional right to abortion, the statement itself is true. Legal doubt and uncertainty incentivize government mischief and fuel cultural controversy. When lines are drawn, by contrast, both citizen and state know where they stand. Sometimes the lines are drawn in the wrong place—such as in Casey, where unborn children were left with no meaningful rights—but sometimes lines are correctly drawn, and the proper, constitutional balance is established between citizen and state.
Ever since the Supreme Court’s decision in Employment Division v. Smith (which dramatically limited the scope of the First Amendment’s Free Exercise Clause) the boundaries of religious freedom have become hazy, the ambition of the state to regulate religious conduct has grown, and the resulting “jurisprudence of doubt” has supercharged the culture war. Religious institutions often simply don’t know whether they’ll be able to continue their ministries—or whether they’ll have to face the terrible choice of violating their conscience or closing their doors.
It’s against that backdrop that the Supreme Court yesterday acted—granting review in a case called Fulton v. City of Philadelphia. In Fulton, the city took punitive action against Catholic Social Services (CSS) and refused to place any foster children with couples endorsed by CSS. The city took action because, as it stated in its initial petition to the Supreme Court, CSS “cannot provide written endorsements for same-sex couples which contradict its religious teachings on marriage.”
The issue was not that CSS prevented any gay couple from becoming foster parents. Gay families can work through different institutions, and—in fact, as the petition states—“not a single same-sex couple approached CSS about becoming a foster parent between its opening in 1917 and the start of this case in 2018.”
So, if gay couples were fostering through different institutions, what caused the city to act? Allegedly it did so only after learning about CSS’s policy through a “newspaper article,” not through any formal complaint. The city then stopped placing children with any family CSS endorsed. According to the petitioners, “This means that even though no same-sex couples had asked to work with the Catholic Church, the foster families that actually chose to work with the Church cannot welcome new children into their homes at a time when Philadelphia has an admittedly ‘urgent’ need for more foster parents.”
The city punished Christian parents who worked through a Christian institution that upheld the traditional teachings of the Christian church. And it’s so committed to its nondiscrimination ideology that it’s willing to limit foster care options in the city—all without evidence that any gay family lacks the opportunity to foster a child.
Last week I had the pleasure of serving as a visiting scholar of constitutional law at Benedictine College in Atchison, Kansas. One of the students asked me what was the most important religious liberty question I wanted to see the court resolve. My answer was simple—the court needs to resolve the clash between religious freedom and nondiscrimination statutes. It needs to draw clear lines, and those lines need to protect the religious freedom of religious institutions.
At present, there is a degree of legal certainty when religious freedom claims are made in what I’d call the purely commercial or purely religious contexts. We’ve known for more than 50 years—since Newman v. Piggie Park Enterprises—that religious business owners can’t lawfully use their faith to justify excluding entire classes of customers from their premises. Not even the most hot-button cases in the commercial context are attempting to overthrow Piggie Park. To take the most recent example, in Masterpiece Cakeshop v. Colorado Civil Right Commission, Jack Phillips happily served gay customers. He wasn’t attempting to strike down civil rights laws but rather to establish that civil rights laws couldn’t compel him to use his artistic talents to advance a religious and cultural message that he opposed. Even if he’d achieved total victory, nondiscrimination laws would still stand—they just wouldn’t reach a narrow range of artistic and creative speech.
Conversely, the Supreme Court has been strongly protective of religious liberty in the purely religious context—when the church is governing itself. The most important recent example is Hosanna-Tabor Evangelical Lutheran Church and School v. EEOC, where a unanimous court struck down an Obama administration effort to apply federal nondiscrimination laws to ministerial hiring decisions.
That leaves an immense amount of uncertainty (and corresponding fear from religious institutions) in those cases where church and state are entangled, at least to some degree. The ever-growing administrative state heavily regulates health care, education, and social services—three areas where the church is not only active, it’s often been active for generations before state involvement. And lest you think that the church “merely” needs to disentangle itself from the state to maintain its freedom, try running a hospital without access to Medicare or Medicaid funding. Or try operating a religious school system without a tax exemption.
Moreover, even if you withdraw financially from the state, multiple areas of American social services have been so thoroughly captured by the state (adoption and foster parenting, for example) that it’s often impossible to operate even completely financially independently without state regulation, state oversight, and state intervention.
Given the hierarchy of American law—where the Constitution is the supreme law of the land, and religious free exercise is the first liberty in the First Amendment—there should be a relatively simple default legal position: religious institutions should not be forced to abandon their religious principles as precondition for participating in state programs, especially when the state has made operating in fields like health care, education, and social services nearly impossible absent some form of state permission.
This default position should be particularly strong when there exists meaningful choice—when patients don’t have to go to Catholic hospitals, when parents don’t have to send kids to Evangelical schools, or when parents don’t have to foster or adopt through Christian adoption agencies. If LGBT families have sufficient agencies to choose from, why should it matter if Christian parents have a Christian agency that meets their legal and spiritual needs? I know first-hand that adoption is both emotionally powerful and extraordinarily legally challenging. It’s a difficult process, and though my family isn’t Catholic, we’ll never forget the Catholic social worker who helped guide us through.
There may be difficult cases—in smaller communities—where choices are not so obvious, but that’s the exception, not the rule. The rule is what CSS faces in Philadelphia, a punitive state trying to restrict the choice of families who seek to foster children.
The Becket Fund for Religious Liberty represents a coalition of foster parents, including a former foster parent of the year and Sharonell Fulton, a foster parent superhero who has fostered 40 children over 25 years. The petitioners are asking the Supreme Court to revisit Employment Division v. Smith and re-establish a stricter constitutional test for state actions that infringe on religious freedom. In Smith, the Supreme Court reversed decades of its own precedent and declared that religious liberty claims should fail in the face of a “neutral law of general applicability.” So long as the law wasn’t targeted at religious practice, the law would stand. But, as Becket argues in its cert petition, the decision is having unintended consequences:
Surely the Court that decided Smith could not have envisioned that Smith would be used to permit Philadelphia to shut down a century-old ministry because the City disagrees with the Archdiocese over marriage. This is precisely the sort of church-state conflict the Free Exercise Clause was designed to prevent.
In fact, a contrary result would invert the constitutional order, placing local nondiscrimination laws over the First Amendment in the legal hierarchy, and as the administrative state grows, the church would be forced to conform or retreat into ever-smaller legal and cultural enclaves. That may be the goal of some of our nation’s more radical culture warriors and more ambitious statists, but it’s contrary to the founding ideals of American liberty.
One way or the other, when the Supreme Court decides the case, it will go a long way towards reducing the “jurisprudence of doubt.” Let’s hope that this time it does so by affirming the constitutional order and upholding the broad religious freedoms the nation’s founders intended to protect.
Your chart of the day.
If you spend much time reading cultural debates online, there’s often a tone of unrelenting doom and gloom—especially applied to kids. Yes, there are deeply troubling trends (such as rising anxiety and depression and rising suicide at virtually all ages), but not every trend is bad. I have three kids, and two of them just exited high school. In my anecdotal experience, I found that their peers were far more poised and mature than I was in high school or my peers were in high school. Yes, that’s just an anecdote, but this chart reinforced my experience. In a later newsletter, we’ll dive more into these trends:
One last thing …
My colleagues over at The Morning Dispatch beat me to it, but I’m not going to let a little thing like repetition deter me from linking to meaningful content. I was stuck in an airport much of the day yesterday, and the only upside is that I was able to follow the Kobe Bryant memorial service online. Michael Jordan’s tribute was powerful, and if you didn’t click through earlier, click through now:
This is the first French Press for members only. The Tuesday and Thursday editions of my newsletter will be sent exclusively to members. For the time being my Sunday newsletter will remain free and open to the public. So, please, share it far and wide to bring people to The Dispatch. Thank you for joining us. We’re building a special community, and you’re an indispensable part. See you in the comment section!
Photograph of the Supreme Court building by Jonathan Newton/Washington Post/Getty Images.
Please note that we at The Dispatch hold ourselves, our work, and our commenters to a higher standard than other places on the internet. We welcome comments that foster genuine debate or discussion—including comments critical of us or our work—but responses that include ad hominem attacks on fellow Dispatch members or are intended to stoke fear and anger may be moderated.
You are currently using a limited time guest pass and do not have access to commenting. Consider subscribing to join the conversation.
With your membership, you only have the ability to comment on The Morning Dispatch articles. Consider upgrading to join the conversation everywhere.