Friday, November 13, 2020

Reclaiming the Race Analogy in Fulton v. City of Philadelphia

Kyle C. Velte

The Supreme Court held oral argument last week in Fulton v. City of Philadelphia, a case asking whether a taxpayer-funded foster care agency may turn away same-sex couples who wish to be foster parents because of the agency’s sincere religious objection to certifying same-sex couples. A Philadelphia ordinance—the Fair Practices Ordinance—and the contract that a family foster care agency such as CSS must sign with the city prohibit such agencies from discriminating against these same-sex couples. But CSS is asking the Court to find that the First Amendment’s free exercise and free speech clauses require the city to grant it an exemption from complying.

The oral argument showed that some of the Justices may believe the case turns on the extent to which an analogy to race discrimination is appropriate in religious exemption cases involving sexual orientation discrimination. Justice Barrett articulated the widespread consensus that the Court would soundly reject a claim for a religious exemption to discriminate based on race (“I think we would agree that there’s really not any circumstance we can think of in which racial discrimination would be permitted as a religious exemption.”). Yet today’s exemptions seekers, as well as some of the justices, bristle at the comparison to the Supreme Court’s 1968 decision in Newman v. Piggie Park Enterprises, which referred to a restaurant owner’s claim for a religious exemption to a law prohibiting race discrimination as “patently frivolous,” even in an era in which the Court applied a form of “heightened scrutiny” to Free Exercise claims.

Those seeking exemptions from sexual orientation non-discrimination laws today contend that litigants in the 1960s who opposed interracial marriage or racial integration on religious grounds were bigoted racists, while their own claims are based on honorable religious beliefs. After setting up this dichotomy, today’s exemption seekers argue that the race analogy must fail. Otherwise, they contend, they will be improperly and inaccurately branded as bigots.

Many opponents of the race analogy rely on dicta from Obergefell—that “[m]any who deem same-sex marriage to be wrong reach that conclusion based on decent and honorable religious or philosophical premises, and neither they nor their beliefs are disparaged here”—to support this normative objection to the race analogy. During the Fulton oral argument, Justice Alito referred to this Obergefell passage to support his own opposition to the race analogy: “Didn’t the Court in Obergefell say exactly that? Didn’t the Court say that there are honorable and respectable reasons for continuing to oppose same-sex marriage? Would the Court say the same thing about interracial marriage?” Moreover, Counselor to the Solicitor General Mooppan suggested that the Loving v. Virginia Court would “never” have suggested that there were “honorable and respectable reasons” for opposing interracial marriage, like the Obergefell Court suggested was acceptable vis-à-vis same-sex marriage.

This is incorrect as a matter of historical fact: Significant segments of mainstream society of the 1960s considered religious objections to racial integration decent and honorable.  Many legal scholars, including most recently Linda McClain in her book, Who’s the Bigot? Learning from Conflicts Over Marriage and Civil Rights Law,[1] and me in a forthcoming article,[2] have noted that in the 1960s, opponents of the Civil Rights Act of 1964 (“CRA”) made religiously grounded arguments similar to the arguments of today’s exemption seekers. Importantly, these religious beliefs were sincere and mainstream.[3] This history stands in contrast to the understanding of Justice Alito and SG Counselor Mooppan at the Fulton oral argument.

Opponents of interracial marriage and the CRA “insisted that God was the author of natural inequality and racial difference.”[4] Supporters of segregation made “appeals to natural law, divine law, and unchanging moral principles in [their] opposition” to the CRA[5] and argued “there were decent, sincere people on both sides.”[6] Well-known clergy, such as Rev. Jerry Falwell,[7] and southern ministers Walter C. Givhan, Herman E. Talmage, William Robinson, and Eugene Cook,[8] relied on sincere religious beliefs in opposing the CRA and interracial marriage.[9] In addition to members of the clergy, the religious beliefs against the mixing of the races were “deeply held by many people.”[10] There was “widespread public disapproval on expressly religious grounds”[11] to interracial marriage. Former President Truman publicly voiced his religious opposition to interracial marriage, saying that it “ran counter to the teachings of the Bible.”[12]  

Leading Senators from both sides of the aisle, including Robert Byrd and Strom Thurmond, made religious arguments against passage of the CRA. Byrd quoted Leviticus on the Senate floor as the basis of his opposition to the CRA.[13] These lawmakers’ sentiments were shared by “educators, ‘housewives, sorority sisters, and Rotarians.’”[14] It was not until 1995 and 2008, respectively, that the Southern Baptist Convention and Bob Jones University apologized for their roles in using religious beliefs to uphold racism.[15] The historical record establishes beyond dispute that “the religious argument for segregation . . . was a quite widely held belief.”[16]

Thus, “just like religious opposition to same-sex marriage in recent years, religious opposition to interracial marriage had a very strong foothold in society” in the years leading up to the U.S. Supreme Court’s decision in Loving v. Virginia.[17] In fact, these views were so mainstream as to end up in the trial court’s decision in Loving: “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.”[18] Even after the Court struck down Virginia’s law, only twenty percent of Americans approved of interracial marriage.[19]

Like today’s exemption seekers, the religious objectors to the CRA and interracial marriage bristled when they were characterized as bigots; they, too, “appealed to conscience, morality, religious teaching, and the Bible as bases for their stance.”[20] Thus, fairly understood, the exemption seekers of the 1960s espoused views, which, though viewed by most people today as offensive, enjoyed a breadth of acceptance and respect by many Americans at the time they were made.[21]  Many then held religious beliefs against interracial marriage and racial integration, just as many people today hold religious beliefs against same-sex marriage and LGBT equality.

Moreover, distinguishing religious beliefs concerning interracial marriage and same-sex marriage based on whether such beliefs are honorable also must fail as a legal matter because courts take at face value sincerely held religious beliefs and do so without attaching judgments as to whether the asserted belief is “prejudiced” or “honorable.” This approach is correct on many levels. As a pragmatic matter, such determinations are beyond judicial competence. As a legal matter, courts decline to look behind a sincerely held religious belief “because they must guarantee government neutrality with respect to religions.”[22] Because courts must not consider the “correctness” of sincerely held asserted religious beliefs, they must likewise reject the claim by exemption seekers that courts can classify religious beliefs as “honorable” or “bigoted,” and then make substantive determinations on claims for religious exemptions based on such impermissible characterizations.[23] Thus, even if it is factually true that CSS, the agency in Fulton, is sincere and honorable in its religious beliefs about same-sex marriage—a fact that courts and the public alike should assume—that fact is not relevant given the plain language of the FPO and the city’s contract with family foster care agencies proscribing discriminatory conduct based on race or sexual orientation—as well as religion, sex and other characteristics—without any hierarchy or exception.

While CSS resists the notion that religiously based objections to racial integration are relevant to resolution of Fulton, the fact that in both situations claims were based on religious beliefs is the relevant comparison, making Piggie Park and the race analogy instructive. Analogizing as a legal matter between this history of religiously motivated racial discrimination and today’s religiously motivated sexual orientation discrimination does not amount to a charge of bigotry. Both outcomes are simultaneously possible: a finding that CSS is honorable and sincere and a finding that Piggie Park would apply to deny CSS a religious exemption even if the Court were to apply the sort of “heightened scrutiny” that it used before its 1990 decision in Employment Division v. Smith. Race furnishes an analogy that should help the Court fashion the best decision in Fulton—one that avoids getting embroiled in  judgments about which religious beliefs are virtuous or prejudiced. Rejecting the race analogy in Fulton would create doctrinal incoherence by permitting a religious exemption for one protected classification (sexual orientation) but not another (race) notwithstanding the persuasive—if not controlling—Piggie Park precedent suggesting (or compelling) a different result. That resulting doctrinal incoherence may destabilize antidiscrimination law beyond sexual orientation discrimination by, for example, creating new questions about how courts should treat claims for religious exemptions to discriminate based on religion and sex.  Indeed,  Justice Sotomayor asked the agency’s counsel whether an agency that has a religious objection to accepting families of different faiths should get the same treatment they are seeking and counsel did not give an answer.

In sum, analogizing to race in Fulton requires no improper governmental assessment of religious beliefs, just as courts made no such assessment in the 1960s. The race analogy, including an analogy to Piggie Park, should thus be used in Fulton to support a decision in favor of the city of Philadelphia, even if the Court chooses to apply some form of “heightened scrutiny.” 

Kyle C. Velte is Associate Professor of Law at the University of Kansas School of Law. You can reach her by e-mail at

[1] Linda C. McClain, Who’s the Bigot? Learning From Conflicts Over Marriage and Civil Rights Law 105, 126 (Oxford University Press 2020).

[2] Velte, Kyle, Recovering the Race Analogy in LGBT Religious Exemption Cases (March 6, 2020). Cardozo Law Review, Forthcoming, Available at SSRN: or

[3] See, e.g., Tisa Wenger, Discriminating in the Name of Religion? Segregationists and Slaveholders Did It, Too, Washington Post (Dec. 5, 2017) (“In battles over slavery and racial segregation, religion and scripture were often cited as justification for maintaining inequality.”).

[4] McClain, Who’s the Bigot?, supra note 1, at126.

[5] Id. at 126.

[6] Id. at 117.

[7] Michael Kent Curtis, A Unique Religious Exemption From Antidiscrimination Laws in the Case of Gays? Putting the Call for Exemptions For Those Who Discriminate Against Married or Marrying Gays in Context, 47 Wake Forest L. Rev. 173, 188 (2012).

[8] See Shannon Gilreath & Arley Ward, Same-Sex Marriage, Religious Accommodation, and the Race Analogy, 41 Vt. L. Rev. 237, 261 (2016).

[9] See id. at 246.

[10] James M. Oleske, Jr., The Evolution of Accommodations: Comparing the Unequal Treatment of Religious Objections to Interracial and Same-Sex Marriages, 50 Harv. C.R.-C.L. L. Rev. 99, 109 (2015)

[11] Nancy J. Knauer, Religious Exemptions, Marriage Equality, and the Establishment of Religion, 84 UMKC L. Rev. 749, 779 (2016).

[12] Oleske, Jr., supra note 10, at 109, citing Truman Opposes Biracial Marriage, NYT (Sept. 12, 1963).

[13] 88 Cong. Rec. 13,207 (1964) (statement of Sen. Robert Bryd).

[14] Gilreath & Ward, supra note 8, at 262 (internal citation omitted).

[15] See John Dart, Southern Baptists Vote to Issue Apology for Past Racism, Los Angeles Times (June 21, 1995); Associated Press, South Carolina: Apology for Racist Policies, New York Times (Nov. 21, 2008).

[16] Curtis, supra note 7, at, 190 (citing Jane Dailey, Sex, Segregation, and the Sacred after Brown, 91 J. Am. Hist. 119, 121 (2004)).

[17] Id.

[18] 388 U.S. 1, 3 (1967).

[19] Knauer, supra note 11, at 778.

[20] Linda C. McClain, The Civil Rights Act of 1964 and “Legislating Morality”: On Conscience, Prejudice, and Whether “Statements” Can Change “Folkways”, 95 B.U. L. Rev. 891, 894-95 (2015); McClain, Who’s the Bigot, supra note 1, at 8 (“[C]lergy and politicians defending segregation vehemently rejected the label of ‘bigot’ and themselves appealed to religion and conscience.”).

[21] See McClain, Who’s the Bigot, supra note 1, at 126 (noting that “religious beliefs about segregation were not ‘fringe’ in the mid-1960s and were sincerely and widely held”).

[22] Nelson Tebbe, Reply: Conscience and Equality, 31 J. Civ. Rts. & Econ. Dev. 1, 33 (2018).

[23] See generally Carlos A. Ball Against LGBT Exceptionalism in Religious Exemptions from Antidiscrimination Obligations, 31 J. Civ. Rts. & Econ. Dev. 233, 237-38 (2018).