FULTON v. PHILADELPHIA, LGBTQ Rights and Why the Supreme Court Unanimously Sided with the Catholic Agency who Refused Service to Gay Couples

(Saul Loeb / AFP — Getty Images)

In Fulton v. City of Philadelphia, the Supreme Court confronted the opposing views of those that seek to promote LGBTQ rights and shield same-sex couples from discrimination and those that define their religious beliefs on the idea that marriage is only between a man and a woman.

Philadelphia sought to remove Catholic Social Services (CSS) from its contract with the city to provide foster care for children because CSS refused to provide services for same-sex couples. CSS’s policy was instead to refer same-sex couples (and unmarried single people) to other foster-care agencies.

CSS sued the city of Philadelphia alleging that Philadelphia violated CSS’s First Amendment rights: the Free Exercise Clause. The Free Exercise Clause states “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof”. (Despite the language citing that “Congress shall not”, the incorporation doctrine — another Constitutional law principle — incorporated the First Amendment onto States as well.)

CSS alleged that Philadelphia was prohibiting the free exercise of their religion.

Philadelphia defended itself as simply enforcing its anti-discrimination contract and ordinances to shield LGBTQ people from prejudices that straight people do not face.

However, because of how Philadelphia wrote its contract and the precedent that oversees First Amendment issues, the Supreme Court held that the city must grant exceptions to CSS and restore its contract with CSS.

Did Philadelphia policy prohibit the “free exercise” of religion?

There is a lot the Constitution says but there is even more the Constitution does not say. Therefore, Supreme Court justices use precedent or past case law (because our legal system operates under common law) to see if Philadelphia is violating the Constitution. The cases can operate like a “test” designed to see if the law or policy in question can “pass”.

For this issue, the Supreme Court used Employment Division v. Smith as precedent to help solve this issue.

First and foremost, the Supreme Court accepted that refusal of services for same-sex couples is a legitimate religious belief: “religious beliefs need not be acceptable, logical, consistent, or comprehensible to others in order to merit First Amendment protection.” — Thomas v. Review Board of the Indiana Employment Security Division.

Second, according to Smith, as long as the law is general AND neutral, the law does not need to come under judicial scrutiny to see if it violates the First Amendment.

Here, the Supreme Court found that the law — the city ordinance in question — was not general. For a law to be general, the law must not allow exceptions according to Smith.

Philadelphia’s contract allows exceptions from the commissioner for foster agencies. Therefore, if an exception exists, the law is not general. And if the law is not general, it is not shielded from judicial scrutiny. The justices can scrutinize the policy to see if it violates the First Amendment.

Basically, the Court found that this policy violates CSS’s religious freedoms. So if Philadelphia is doing so, it must be scrutinized by the judiciary to decide if it is okay.

Additionally, the Court held that foster services are not a “public accommodation” under the city’s own definition because it provides exclusive services to a niche market.

Strict Scrutiny Test

If a law, policy, act, or behavior of the government violates the rights of an individual or group of people, the law is subject to strict scrutiny. A test designed to see if a government policy that violates rights of its citizens is justified:

1. Does the government have a compelling interest of the highest order to enforce this policy?


2. Is the government policy narrow?

Here, the Court held that the city of Philadelphia did not have a compelling interest in refusing an exception to CSS. If Philadelphia’s goal was to create anti-discrimination shields, it would not have created an exception. And if Philadelphia’s interest is to provide homes for foster children, ending a contract with CSS was counter-productive towards this interest.

Therefore, Philadelphia, by refusing to grant an exception to CSS, was violating the Constitutional rights of Catholic Social Services. The ruling was unanimous.

“Bruh, you had a deal with these folks. And if these guys need an exception in that deal you agreed on because they say it’s their religion, then you gotta give it to ‘em” — My Rough Translation.

My Personal Issue: Stop Using Religion as an Excuse to Discriminate

While the Supreme Court and its justices performed their duty to uphold the law, there still lies the issue that LGBTQ people in America face discrimination. And that discrimination comes from individuals and groups that use “religious beliefs” as an excuse.

People need to stop using “beliefs” as an excuse to discriminate against LGBTQ people.

The same lines of arguments were used to justify Jim Crow with the Tower of Babel analogy.

In the story of the Tower of Babel, God, angered that humans were cooperating to engineer a path to the heavens, scattered and separated humans across Earth.

“Therefore is the name of it called Babel; because the Lord did there confound the language of all the earth: and from thence did the Lord scatter them abroad upon the face of all the earth.” Genesis 11:9

This was even cited in court opinions to uphold Jim Crow and anti-race mixing laws in America.

“Almighty God created the races white, black, yellow, malay and red, and he placed them on separate continents. And but for the interference with his arrangement there would be no cause for such marriages. The fact that he separated the races shows that he did not intend for the races to mix.” — The trial judge who upheld a conviction against the Lovings, a mixed-race couple that would take their case to the Supreme Court and eventually strike down miscegenation laws that prohibited marriages between white and black Americans.

I am Catholic. I do not believe our religion should discriminate against gay and lesbian couples. We know it harms them when we discriminate against them. We know it is wrong. And there are many out there like me, brave enough to bless gay couples. In the end, we are all God’s children and love is love.

Matthew 22:39 — Thou shalt love thy neighbour as thyself.



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Stevan Molinar

Stevan Molinar

Management Consultant — Accenture; M.A. International Relations — University of Chicago; Former U.S. Army Infantry Officer. I write on Politics and Economics.