I spent Thursday morning doing what any sober-and-respectable, nearly 60 year old attorney would do after hearing that the Supreme court had just handed down a unanimous decision with which she wholeheartedly agreed: I danced; I tweeted at Philadelphia’s mayor in a childish and gloating manner; I took out my rosaries and said a prayer; and I deeply considered whether it was too early to down a glass of champagne.
This might seem a bit much, but it gives you a glimpse into my state of mind after the Supreme Court ruled that the city of Philadelphia could no longer discriminate against Catholic Social Services.
I’ve already written about the controversy. But for those of you who aren’t up-to-date, the facts are fairly simple:
A few years ago, Philadelphia ended its contractual relationship with Catholic Social Services and its foster care program on the grounds that – stay tuned for the surprise – the Catholic-based program did not place foster children with same-sex couples. The fact that no same-sex couple had ever sought the services of CSS was irrelevant.
The only thing that mattered to Mayor Jim Kenney and his administration was pleasing the progressive activists who are hell bent on wrapping a rainbow around every building in the city, including St. Peter and Paul Cathedral.
On a Thursday morning during Pride month, all nine justices delivered a unanimous message: the constitutional right to free exercise of religion cannot be infringed upon, no matter what creed a radical mayor may prefer.
CSS then sued, choosing two deeply devout black women named Sharonell Fulton and Tony Simms-Busch as the named plaintiffs. They alleged religious discrimination on the part of the city under the Free Exercise Clause of the First Amendment. They lost at both the district and circuit court levels before it was picked up by the Supreme Court and argued last year.
And on a Thursday morning during Pride month, all nine justices delivered a unanimous message: the constitutional right to free exercise of religion cannot be infringed upon, no matter what creed a radical mayor may prefer.
Holding that the City of Not So Brotherly Love had violated the Free Exercise Clause, the court in a decision written by Chief Justice Roberts held that:
“As Philadelphia acknowledges, CSS has “long been a point of light in the City’s foster-care system.” CSS seeks only an accommodation that will allow it to continue serving the children of Philadelphia in a manner consistent with its religious beliefs; it does not seek to impose those beliefs on anyone else. The refusal of Philadelphia to contract with CSS for the provision of foster care services unless it agrees to certify same-sex couples as foster parents cannot survive strict scrutiny, and violates the First Amendment.” [Emphasis added]
If only the lower courts had understood that principle, we wouldn’t have had to waste all of this time climbing the legal ladder. Yet, in a sense, I’m glad we did, because now there is a rock solid ruling that says that you cannot treat a religious organization that is similarly situated to secular organizations in a discriminatory manner.
But in another way, I’m saddened that the city I grew up in, and in which I currently reside, the city where the Constitution was written and ratified, the city whose founder–William Penn–arrived on these shores specifically to protect and defend the religious freedom of its inhabitants, was so intent on discriminating against people of my own faith.
And if Catholics are fair game, what is to stop them from going after other religions that hold beliefs and traditions that are anathema to the woke crowd? Before this decision, the lower federal courts of this hallowed jurisdiction said, “Nothing.” Now, the Supremes have spoken and told us that you cannot make religious institutions inferior, and religious people second class citizens in their own country.
The only thing that mattered to Mayor Jim Kenney and his administration was pleasing the progressive activists who are hell bent on wrapping a rainbow around every building in the city.
Some critics of the court’s unanimous decision in finding in favor of CSS are trying to say that it is narrow, and that only 6 justices joined in Roberts’ majority opinion. What they miss is that the most liberal of the justices are the ones who joined in that majority, including Sotomayor, Breyer and Kagan. That is a pretty diverse majority.
The concurrences would have been even more favorable to CSS, and established an even broader precedent.
There is no question that this is a victory for religious freedom. The ACLU, sensing that a crucial individual right was at stake issued a tepid initial tweet stating that it was “reviewing the decision.” I tweeted back, petulantly, that they could review it all they wanted but it was a done deal. Unanimous. Highest court. Mic drop.
But to be honest, my bravado and frivolity are actually a cover for profound relief, and equally profound gratitude. There was always the possibility that the Supreme Court would have found in favor of the city, making sexual orientation and identity more important than someone’s faith. The fact that there were so many other organizations in Philadelphia that would accept LGBT applicants as foster parents was irrelevant to CSS’s critics. They wanted to make sure that any organization that placed its faith and its values above their dogma of “inclusion” was to be, ironically, shunned and excluded.
Two lower courts agreed with them. The highest one, and the only one that matters, did not.
As a lawyer, a Catholic, and a Philadelphian, I have only one response to that, after the champagne:
Christine Flowers is an attorney and lifelong Philadelphian. @flowerlady61