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The Barrett factor: How would the new justice rule on religious freedom and gay rights?

If confirmed before the election, Barrett will soon hear a religious liberty case with far-reaching implications

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Supreme Court nominee Judge Amy Coney Barrett meets Sen. Jerry Moran, R-Kansas, not shown, on Capitol Hill, Thursday, Oct. 1, 2020, in Washington.

Anna Moneymaker, The New York Times via The Associated Press

SALT LAKE CITY — President Donald Trump has nominated Amy Coney Barrett, a judge for the U.S. Court of Appeals for the 7th Circuit, to replace the late Justice Ruth Bader Ginsburg on the Supreme Court. Though a coronavirus surge among GOP senators has complicated the proceedings, Barrett’s confirmation is still expected. Her appointment would give the Supreme Court a 6-3 conservative majority that could shape rulings for decades.

This could play out on the day after the presidential election, when the court is set to hear Fulton v. Philadelphia, a case that could set a precedent for conflicts between religious practices and governmental nondiscrimination rules. Catholic Social Services and two foster parents sued the city of Philadelphia, arguing that faith-based foster care agencies cannot be required to abide by city nondiscrimination laws if they are contracted by city governments. While much has been made of Barrett’s devotion to her Catholic faith, there is another reason to believe her decision in this case could surprise many observers.

The issue

  • In 2018, the city of Philadelphia announced that it would not contract with foster agencies that, for religious reasons, wouldn’t allow same-sex couples to participate.
  • Catholic Social Services quickly filed a lawsuit, arguing that prohibiting faith-based foster organizations from participating in the city’s program amounted to unlawful religious discrimination. The District Court and Court of Appeals both ruled in favor of the city, so CSS appealed to the Supreme Court.
  • “CSS sincerely believes that the home study certification (the endorsement the agency gives families if it deems them fit for foster care) endorses the relationships in the home,” CSS wrote in a petition to the Supreme Court, “and therefore it cannot provide home studies or endorsements for unmarried heterosexual couples or same-sex couples.”
  • Philadelphia officials responded, “Excluding qualified parents based solely on their sexual orientation ... would do a disservice to children in the foster system (and) unnecessarily limit the pool of available parents.”

Barrett’s perspective

Barrett’s background, and her Catholic faith, suggest a justice sympathetic to the concerns of Christian groups. But Barrett’s mentor, the late Justice Antonin Scalia, was a majority vote in Employment Division v. Smith in 1990, which ruled that laws violate the First Amendment only if they target a specific religious practice, not if they simply contradict them. Barrett may hold to Scalia’s belief that the law superseding religious objections “must be preferred to a system in which each conscience is a law unto itself.”

The decision

The lawsuit specifically asks the court to reconsider the precedent established in Employment Division v. Smith, which could broadly impact cases where religious principles conflict with civil-rights laws. “Philadelphia is penalizing Catholic Social Services because its beliefs about marriage don’t mesh with progressive cultural values,” wrote The Wall Street Journal’s editorial board about the case. Others worry that a ruling against the city could leave LGBTQ individuals unprotected. “It will essentially allow anyone who has a religious basis for discriminating to claim that they are constitutionally exempt from the application of civil rights laws,” Carlos Ball, a Rutgers law professor, told NBC News.

Key quote

“His judicial philosophy is mine, too — a judge must apply the law as written.” — Barrett on her late mentor, Justice Scalia