The public and the courts continue to debate whether there should be religious exemptions to LGBT anti-discrimination laws. In other words, there are anti-bias laws that must be enforced, and at the same time there are religious rights that under the law generally require some accommodation. When these two issues collide, the outcome becomes difficult.
In the most recent U.S. Supreme Court ruling, issued in June, Fulton v. Philadelphia, in which the Catholic Social Services lost a city contract to screen foster parents after Philadelphia officials learned that the agency would not work with same-sex couples. Catholic Social Services argued that because the Roman Catholic Church does not recognize same-sex marriage, its religious exercise rights entitle it to disregard city policies forbidding discrimination based on sexual orientation.
In an earlier 1990 precedent, Employment Division v. Smith, the Supreme Court ruled that religious believers cannot use the First Amendment to exempt themselves from neutral laws that apply to the public at large. This ruling has been interpreted as reaching the conclusion that the government can enforce generally applicable laws without making an exception for religious groups. In the current case, however, the opinion written by Chief Justice Roberts, found a way to rule for the Catholic group's religious rights without issuing a more sweeping ruling favoring religious rights, by pointing to the city contract which contained a clause allowing exceptions to the non-discrimination policies. He therefore concluded that this exception meant the rules were constitutionally suspect because they were not "generally applicable" due to the exceptions allowed.
There was a concurring opinion by newly appointed Justice Barrett, joined by Justice Kavanaugh, and, importantly, by Justice Breyer. This concurrence suggested that the earlier 1990 precedents limiting religious rights under generally applicable laws should be reviewed, but that it would be unwise to do so before working out legal framework to replace it. Many believe that the Court will be presented in the near future with a case in which the Court will issue such an important ruling, possibly a case where a religious retailer refused to make floral arrangements for a same-sex wedding. Some believe there is a trend at least among the current Court to allow greater religious accommodation. The controversy may also affect current legislation known as the Equality Act dealing with comprehensive LGBT rights, which is to be considered by the U.S. Senate. In Texas, Christian groups are suing the EEOC over Title VII's LGBT anti-discrimination requirements. Christian groups are seeking to represent classes of employers that have religious and non-religious objections to homosexuality or "transgender" behavior. Christian groups have long advocated a strict test that would require the government to show that a neutral law of general applicability that burdens religion at all, must be narrowly tailored to meet a compelling interest. Justices Alito and Thomas advocated in their concurring opinions for this "strict scrutiny" test to apply.
This is part of our August 2021 Newsletter.
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