June 18, 2021
The Supreme Court’s unanimous consensus on religious freedom and LGBTQ+ rights contained in its decision in Fulton v. City of Philadelphia offers both conservatives and progressives an invitation to leave behind their culture war tactics and grow into something better. The question is, will we free ourselves by learning from the example in Fulton or remain in the political prison of the status quo?
On one side of the debate surrounding the Fulton case, some progressive activists in their press releases and fundraising materials framed the freedom of religious exercise in foster care services sought by Catholic Social Services (CSS) as nothing more than a “license to discriminate.” In doing so, they cultivated a prejudice against traditional religious views on marriage and sexuality that are a fundamental part of the faith that forms the identity and human dignity of tens of millions of American religious adherents.
On the other side of the debate, some conservative activists maintained that protecting religious exercise in public spaces required overturning 30 years of legal precedent – a no-compromise approach toward progressives and LGBTQ+ rights. In this activist approach, following the path of consensus-building and compromise that generated the language of the Declaration of Independence and secured the ratification of the United States Constitution is to undermine or outright abandon religious freedom.
The court’s decision in Fulton defied both simplistic ideological narratives.
In the court’s ruling, progressive and liberal justices teamed up with conservative justices to declare that “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.” Far from seeking a license to discriminate, it was noted in the case that “CSS does not object to certifying gay or lesbian individuals as single foster parents or to placing gay and lesbian children,” and if a same-sex married couple sought to foster a child using their services, CSS would help them find one of the more than 20 other providers willing to help them become a foster family. In short, the progressives on the court effectively denied the idea that protection for religious exercise is simply a “license to discriminate.”
But the court protected Catholic Social Services’ religious freedom without doing what conservative advocates sought, which was to overturn the court’s 30-year-old Smith decision. Despite not overturning Smith, the court still ruled that denying CSS a contract to offer foster care services because of their views about marriage violated constitutional protections for religious freedom. At the same time, the court recognized the compelling need for the city to protect LGBTQ+ individuals from discrimination. The court ruling to protect religious exercise while affirming LGBTQ+ rights – with a unanimous decision, no less – effectively denies that they cannot coexist.
That the court can reach a unanimous consensus around one of the most divisive policy debates out there – the intersection of religious freedom and discrimination in public accommodations – is a sad commentary on the elected branches’ seeming inability to follow suit. If nine justices representing the middle and fringes of our political and ideological spectrum can – with the assistance of a few dozen clerks – reach consensus on one of the most contentious culture war issues in living memory, how can Congress and the executive branch with their armies of staff and funding fail to do the same?
Of course, consensus does not mean agreement in everything. As the concurring opinions in the Fulton case illustrate, there remain disagreements – even passionate and pointed disagreements – among the justices on the issue. But the justices have shown both the character and intellectual depth required to build consensus and forge compromise in the presence of disagreement.
Those elected by the people should strive to do the same and become the statesmen and stateswomen that our constitutional system requires. The American people deserve better than being forced to constantly rely on the courts alone to protect and preserve the fundamental rights and responsibilities articulated in our nation’s founding documents, because their elected leaders continually fail to do so.
A better way is both possible and doable. We just have to be willing to be the kind of people who can accomplish it.
A recent news story pointed out that President Joe Biden has begun his administration with a strong record for getting new federal judges confirmed. Since taking office, he has managed to secure the confirmation of eight federal judges, more than any president since Richard Nixon.
With vision, leadership and sufficient efforts on the ground, we can muster the political will to plant “the Utah way” in the hearts and minds of future generations.
So if a destructive CRT ban is at best a partial policy solution – which may ultimately prove ineffective – what are the alternative (or perhaps additional) policy options that leaders should consider?