The Fulton v. City of Philadelphia Oral Argument: Interracial Marriage as a Constitutional Lodestar— or Third Rail?—in Reasoning about Religiously-Motivated Discrimination

Linda McClain

I agree with Professor Kyle C. Velte’s insightful post on this blog, “Reclaiming the Race Analogy in Fulton v. City of Philadelphia” (Friday, November 13), in which she insists on the appropriateness of the analogy between religious opposition to interracial marriage and—more broadly—to racial integration and present-day religious opposition to same-sex marriage and—more broadly—to providing goods and services to same-sex couples.  Reflecting on the recent oral argument before the U.S. Supreme Court in Fulton, Velte suggests that how some Justices view the aptness of the race discrimination/sexual orientation analogy may shape their approach to the case.  Professor Velte’s post draws on arguments in an amicus brief that she authored, submitted in Fulton on behalf of respondents and joined by several legal scholars (including me). The brief urges the Court that civil rights-era precedents such as Newman v. Piggie Park Enterprises (1968) are relevant to present-day controversies over claims to religious exemptions to antidiscrimination laws and cautioned against arguments—advanced earlier in Masterpiece Cakeshop v. Colorado Civil Rights Commission—that any analogy to Piggie Park was inapt because yesterday’s religious segregationist was obviously a bigot, with “fringe” beliefs, while today’s religious believers in traditional marriage are sincere, with decent and honorable beliefs.  As Professor Velte argues in her post (and as I have elaborated in Who’s the Bigot?), this supposed disanalogy sets the stage for a further argument: if business owners (like Jack Phillips) or religious social service agencies (like Catholic Social Services, in Fulton) who sincerely object to same-sex marriage are denied exemptions from state or local antidiscrimination laws, they are being branded and treated as bigots argument. In this post, I offer additional analysis of the prominent role played by the race analogy in the Fulton oral argument.

To be sure, no one used the express rhetoric of bigotry in the Fulton oral argument.  However, the idea that Catholic Social Services (CSS) was being branded as a bigot because Philadelphia would not allow it to continue its contract as a foster care agency (FCA) unless it agreed to comply with the Fair Practices Ordinance and certify same-sex couples for foster care placements was implicit in remarks by Deputy Assistant Attorney General Hashim Mooppan (U.S. Department of Justice), who appeared as amicus curiae in support of CSS and the other petitioners. Justice Alito’s questioning and statements also implied such a charge. Similarly, although Piggie Park did not make an appearance, several justices raised the race analogy in the form of questions about religious objections to interracial marriage. Counsel for the parties and the various justices sharply disagreed about the force of this analogy. For Mooppan and for Lori Windham, counsel for petitioners, as well as for some of the conservative justices, Loving v. Virginia seemed less of a constitutional lodestar and more akin to a third rail on the subway: to be avoided as so inapt as to be incendiary and dangerous.  For the City’s attorneys and some of the liberal justices, the example of interracial marriage featured as a fixed point, or lodestar, that should guide reasoning about government’s compelling interest in ending discrimination on grounds other than race. In effect, this dual approach reprised Obergefell v. Hodges (2015): Loving was a constitutional lodestar in Justice Kennedy’s majority opinion holding that same-sex couples had a fundamental right to marry, while the dissenters argued that Loving in no way supported such a holding and that such reasoning from race would vilify sincere religious believers in traditional (man-woman) marriage as bigots.

In the Fulton oral argument, several justices raised the interracial marriage hypothetical, pondering how to draw lines concerning what sorts of religious beliefs might receive exemptions from the City of Philadelphia’s nondiscrimination law (the Fair Practices Ordinance) if the Court reversed the Third Circuit and upheld CSS’s free exercise claim. Further, some wondered how religious objections to interracial marriage would fare if the Court abandoned Employment Division v. Smith, as CSS has urged it to do, and adopted a stricter form of scrutiny for any law that burdened the free exercise of religion.

Justice Sotomayor first posed the line-drawing question to petitioners’ attorney, Lori Windham, asking if the City, in contracting with a religious social service agency, would have to allow the agency to exclude people from the pool of potential foster parents because they were part of an interracial couple, from a different religious tradition, or had a disability.  Justice Sotomayor queried: “How do we avoid that?” The attorney leapt over the interracial couple to focus on the disability example, contending that the City did permit exclusions based on disability (a claim that Justice Sotomayor challenged on the facts).

Justice Barrett returned to Justice Sotomayor’s example of interracial marriage, asking Windham: “What if there was an agency who believed that interracial marriage was an offense against God and, therefore, objected to certifying interracial couples as foster families.” Barrett asked if such an agency would be “entitled to an exemption” and “if so, how is that distinguishable from . . . CSS’s refusal to certify children to couples in same-sex marriages?”    

Justice Breyer also brought up the interracial marriage analogy when questioning Mooppan, asking if a religious belief against interracial marriage was the only example in which a governmental interest in eradicating discrimination was “compelling.”  What if government, he asked, contracted with a food distributor who, because “they are Orthodox Jews . . . want nothing to do with ham” or let anyone else distribute it? Or a religious entity that bids on a local transportation contract but seeks to sit men and women separately – or wants “women to wear head scarves”?

 Mooppan initially resisted the question, by indicating the answer would depend on whether “The government is acting in a generally applicable and neutral way,” since he argued the City had not, given its supposed “myriad exceptions.” However, when pressed, he resorted to the “race is special” argument, saying he “would differentiate the interracial marriage [hypothetical] from the rest of them.” This argument is that the Court’s precedents make clear that the “unique” place of race in U.S. constitutional history gives government a “super-compelling interest” in eradicating race discrimination.

Justice Breyer pressed Mooppan on the implications of this “race is special” approach to the protection of Free Exercise claims, asking: “now two of you [Mooppan and Windham] have said this, that we should write an opinion which says discrimination on the basis of race, constitutionally speaking, is different than discrimination on the basis of gender, on the basis of religion, on the basis of nationality, on the basis of homosexuality, all right? Is that the opinion you want us to write?”  Mooppan seemed to agree, arguing that the Court had referred to eradicating race as “a particularly unique and compelling interest.” (Mooppan referred to Pena-Rodriguez v. Colorado (2017), which allowed impeachment of a jury verdict because of evidence of racial bias.)

Windham also emphasized that race is special. To Justice Barrett’s question about a social service agency raising a religious objection to interracial marriage, Windham answered by citing to Loving v. Virginia, which indicated that “the Court has been clear” in that case “and other cases that government has a compelling interest in eradicating racial discrimination.” The hypothetical objection to an interracial couple, Windham insisted, was a “far cry” from the case before the Court. Thus, a ruling that the Fair Practices Ordinance violated CSS’s free exercise of religion because of its religious objections to same-sex marriage did not lead to the City having to accommodate religious objections to interracial marriage, given the state’s compelling interest in ending racial discrimination.

For the most part, Windham and Mooppan avoided directly answering the question of whether a governmental interest in prohibiting sexual orientation discrimination was also compelling. Justice Kagan pressed Mooppan repeatedly to give a yes or no answer this question, but he resisted doing so. He insisted that Philadelphia itself had failed to show a compelling interest in enforcing its Fair Practices Ordinance against CSS because of a slew of supposed exceptions to the Ordinance – a factual claim countered by counsel for respondents. Finally, he suggested that, “in the abstract,” it might be a compelling interest, but “we haven’t taken a position on that question” because of this supposed undermining by Philadelphia of that interest.

Justice Sotomayor pressed Mooppan on “race is special” argument by reasoning by analogy from why the state interest in ending race discrimination is compelling: the stigma created by rejection. On this reading, the Court’s racial discrimination mean “not merely that race was important but that the burden on the people who are rejected because of race is an interest that the state could seek to protect, that a rejection on the basis of race or any protected category creates a stigma on that person and that it’s a compelling state interest for the state to have an anti-discrimination law on the basis of protected classes.” Asked whether he was “diminishing that as a compelling state interest,” Mooppan said he was not, but then insisted that such stigmatic harm was not present since no gay couple had been denied the ability to serve as a foster parent. To a skeptical Justice Sotomayor, he argued that such couples did not seek out CSS because they accepted and recognized CSS’s “deep-seated, sincere religious objection to gay marriage.”  

Another tack that Windham and Mooppan took was to assert a constitutionally relevant moral distinction between a religious belief condemning interracial marriage and one condemning same-sex marriage, enlisting Obergefell.  Here they received an assist from Justice Alito and some of the other conservative justices. Immediately following Justice Breyer’s pressing Mooppan on the “race is special” argument, Justice Alito asked, “Didn’t the Court in Obergefell say exactly that?” Alito referred to Obergefell stating “that there are honorable and respectable reasons for continuing to oppose same-sex marriage,” and then asked Mooppan, “Would the Court say the same thing about interracial marriage?” With this assist, Mooppan promptly answered “no,” stating that the Loving court did not and “never would have” made statements similar to those in Obergefell in the context of opposition to interracial marriage. (Of course, this may be misleading if it implies that Loving directly addressed religious opposition to interracial marriage. To be sure, Chief Justice Warren’s opinion quoted without comment the trial court’s theological argument against interracial marriage (“Almighty God created the races . . . “), and the theology of segregation frequently featured in judicial opinions upholding antimiscegenation laws. However, when Warren characterized Virginia’s supposedly “legitimate purposes” for its Racial integrity Act as “obviously an endorsement of the doctrine of White Supremacy,” he quoted Naim v. Naim’s appeal to preventing “the corruption of blood” and a “mongrel breed of citizens,” rationales not stated in explicitly religious terms in Naim.)

Mooppan also argued that Masterpiece Cakeshop supported a relevant moral distinction between objection to interracial and same-sex marriage. He extrapolated from Justice Kennedy’s observation that “gay persons” could accept a religious exemption for clergy from being compelled to perform a wedding ceremony without such exemption diminishing their own “dignity and worth” to suggest that a “pluralistic nation that respects religious tolerance” could accommodate “longstanding, deep-seated, sincere religious beliefs that oppose same-sex marriage” as consistent with the Free Exercise Clause. That “tolerance,” in other words, would include exempting CSS, as a government contractor, from the City’s Fair Practices Ordinance – quite a reach from Kennedy’s clergy example. By contrast, Mooppan argued that similar tolerance would not apply to interracial marriage, “given the significant, compelling interest in that context.”  This reading of Masterpiece Cakeshop, however, ignores that Kennedy also cautioned that if a religious exemption were not carefully confined, gay persons could experience a “community-wide stigma inconsistent with the history and dynamics of civil rights laws that ensure equal access to goods, services, and public accommodations.”

Neither Windham nor Mooppan explicitly argued that CSS was being branded or treated as bigoted because of its religious beliefs about marriage, but they and some of the conservative justices implicitly drew a contrast between a sincere believer with decent beliefs and a bigot with odious beliefs. Thus, Mooppan argued that Philadelphia treated CSS’s beliefs as unworthy of respect. They did not renew their foster care contract with CSS because they viewed CSS’s as “too odious to tolerate,” as “some sort of odious anachronism rather than, as this Court has recognized, a decent and honorable view that people can recognized and accept in a country that’s committed to religious tolerance.”

Justice Alito seemed to embrace this diagnosis, asking Professor Neal Katyal, counsel for the City of Philadelphia, to be “honest about what’s really going on”:  the City could not stand the “message” that CSS was sending by adhering to an “old fashioned view” about marriage.  He did not add “bigoted” to “old fashioned” in the oral argument, but in a subsequent Federalist Society speech, Justice Alito reiterated his objection to Obergefell and its  supposed branding of believers as bigots. He reportedly asserted: “you can’t say that marriage is the union between one man and one woman. Until very recently, that’s what the vast majority of Americans thought. Now it’s considered bigotry.” 

Further, the rhetoric of bigotry was explicit in the concurrence that Justice Alito joined—authored by Justice Thomas -- when the Court denied Kentucky county clerk Kim Davis’s petition for certiorari. That concurrence reiterated the Obergefell dissenters’ warnings of the threat to religious liberty from the majority “reading” a right of same-sex couples to marry into the Constitution, instead of allowing state legislatures to resolve the matter in a way that could have included accommodations for the “many Americans” who—like Kim Davis—“believe that marriage is a sacred institution between one man and one woman.” Instead, the concurrence charges that, despite Obergefell brief mention of sincere, decent, and honorable beliefs, it suggested that those with those beliefs “espoused a bigoted world view” and opened the door to vilifying them as bigots. The concurrence stated that Kim Davis was perhaps one of the first “victims of this Court’s cavalier treatment of religion,” she would not be the last. Presumably, Justice Alito and some other justices view CSS as yet another such “victim,” unless the Court reverses the Sixth Circuit and perhaps even overrules Smith. 

Justice Kavanaugh, who joined the Court after Obergefell and Masterpiece Cakeshop, did not explicitly criticize Obergefell. Instead, he invoked the “promise” of both Obergefell and Masterpiece of “respect for religious beliefs.” He commented to Katyal: “what I fear here is that the absolutist and extreme position that you’re articulating would require us to go back on the promise of respect for religious believers.”  His sympathy for CSS seemed evident when he characterized Philadelphia as “looking for a fight,” and creating a “clash,” rather than seeking a “balance” that recognizes both religious exercise under the First Amendment and the same-sex couples right to marry, under Obergefell.

Justices Alito and Kavanaugh may have been trying to frame the City’s dealings with CSS as showing “hostility,” akin to Justice Kennedy’s criticisms of the civil rights commissioners in Obergefell. However, Katyal rebutted these proffered narratives of “what’s really going on” or of the City “looking for a right” by pointed out that the City continued to work with CSS. He repeatedly mentioned the $26 million in funding that CSS continues to receive from the City for child-related services other than certifying foster parents—“hardly something demonstrating religious hostility.”  In this way, he also countered Mooppan’s suggestion that the City viewed CSS’s beliefs as too “odious” to tolerate.

Katyal and Jeffrey Fisher, for the other respondents (Support Center for Child Advocates and Philadelphia Family Pride), both skillfully addressed both the “race is special” argument and the attempt to distinguish different types of religious objections to complying with antidiscrimination laws based on the moral quality.  Fisher addressed both these points in response to Justice Barrett’s questioning. Justice Barrett posed the interracial couple hypothetical:  “I think we would agree that there’s really not any circumstances we can think of in which racial discrimination would be permitted as a religious exemption.” She then asked Fisher if the objection to same-sex marriage was “like racial discrimination” or if it would justify an exemption. Fisher answered that the two forms of discrimination were similar, for purposes of her analysis. While “race is special in many ways in the Court’s jurisprudence,” he pointed out that the Court’s free exercise jurisprudence does not “judge the legitimacy or the offensiveness of religious beliefs,” but instead focuses on sincerity or the beliefs being “deeply felt.” In support he cited Bob Jones University, as evidencing that “some religious organizations do have deeply felt views about interracial marriage.”  As Professor Velte observed in her blog post, it was not until 2008 that Bob Jones University finally “apologized” for its role “in using religious beliefs to uphold racism.”  

Fisher argued that the question is then whether government’s compelling interest applies differently in the religiously-motivated race discrimination case than in other types of cases. He argued it should not, since government has a compelling interest in eliminating forms of discrimination in addition to race discrimination, such as sex discrimination (citing to United States v. Jaycees). Fisher also observed how, in Bostock v. Clayton County, the Court had ruled that sexual orientation discrimination was sex discrimination. This sex or gender discrimination example (also brought up by Justice Kagan) is an important way to remind the justices that modern state and local antidiscrimination laws have many protected categories in addition to race, including sexual orientation. Justice Kennedy recognized this in Masterpiece, when he wrote (for the majority): “It is unexceptional that Colorado can protect gay persons, just as it can protect other classes of individuals, in acquiring whatever products and services they choose on the same terms and conditions as are offered to other members of the public.”    

With respect to the City of Philadelphia and the terms and conditions of its contracts with foster care agencies, Katyal argued that it  had identified the “most compelling of interests” for requiring compliance with the Fair Practices Act: protecting the children to be placed in foster care, “its own wards of the state.” The Ordinance’s nondiscrimination requirements helped it to “maximize the number of parents in the pool and avoid stigma” both to parents and to youth by allowing contractors to discriminate among parents based on sexual orientation. Philadelphia had a compelling interest in avoiding that stigma and in growing the pool of potential foster parents because “LGBT kids are an outsize number of people in the foster care population.” Katyal noted that other jurisdictions with nondiscrimination policies had seen an increase in the number of people in the pool, not a decrease.  This analysis of stigma resonated with Justice Sotomayor’s approach to the state’s compelling interest in ending discrimination based on protected categories.

Katyal and Fisher further countered the “race is special” argument by contending that it was not possible to separate race discrimination from all other forms of discrimination and that line drawing questions were inevitable once the City allowed any religious exemptions. Katyal resisted Justice Kavanaugh’s framing of the case as one pitting religious liberty against same-sex equality, pointing out that it was actually a “religion versus religion” case. He warned of balkanizing foster case: once one accepts a right of a foster care agency (like CSS) to make determinations based on their religious beliefs, “another FCA can say we won’t allow Baptists, we won’t allow Buddhists,” and so forth.  Instead of just a “small, tiny accommodation,” which would cause little harm, the door would be opened to “all sorts of claims,” because the Court assesses only sincerity, not the “reasonableness” of a belief.

The justices seemed sharply divided on the comparative harms in the case, which echoed the competing positions in Obergefell and Masterpiece. In the Fulton oral argument, some of the conservative justices sought confirmation of facts that no same-sex couple had been turned away by CSS, that they could readily work with other agencies, but meanwhile many vulnerable children were harmed by not allowing CSS to participate in placing children. Justice Kavanaugh insisted he “fully appreciate[d] the stigmatic harm” point, but that the effort should be to accommodate religious exercise so that it was not in conflict with the rights of same-sex couples under Obergefell –in keeping with the “promise” of Obergefell and Masterpiece. By comparison, the liberal justices emphasized the stigmatic harm of discrimination against persons in all protected categories (e.g., Justice Sotomayor) and the potentially vast number of religious exemptions that government contractors might seek—particularly if the Court jettisoned Employment Division v. Smith (e.g., Justice Breyer).  

The Fulton oral argument shows that interracial marriage continues to hold a special place in constitutional reasoning about tensions between religious liberty under the First Amendment, on the one hand, and, on the other, constitutional protection of civil marriage equality for same-sex couples and civil rights protections of LGBTQ persons under state and municipal nondiscrimination laws. Loving v. Virginia and the Court’s other race discrimination cases provide a constitutional lodestar for navigating how to reason about such controversies. But certain forms of the “race of special” argument treat these precedents more as a proverbial third rail of the subway – to be avoided as inapt or even dangerous.  Or put a different way, the “race is special” argument forecloses reasoning by analogy because it implies that only government’s interest in eradicating race discrimination is sufficiently compelling. As I argue in Who’s the Bigot?, and Professor Velte observes in her post, the racist bigot frozen in the past too readily serves as a contrast figure for arguments that to apply antidiscrimination laws that would limit sincere religious believers from acting on their beliefs in the public sphere—including as government contractors—brands them as bigots.

There is a painful irony in this, given that the Fulton oral argument took place on November 4,  the day after the 2020 presidential election. The oral argument featured repeated statements about the unique history of race discrimination in the U.S., and, as a result, government’s particularly compelling interest in eradicating it. Outside the (virtual) walls of the Supreme Court oral argument, however, even though over 75 million voters chose Vice President Biden and Senator Kamala Harris, who pledge to fight systemic racism, acknowledge that Black Lives Matter, and advance civil rights, 70 million voted to re-elect President Trump, who has denied systemic racism, refused to say “Black Lives Matter,” failed to condemn bigotry, and supported rolling back civil rights protections for many different groups of Americans. If only the sacrosanct commitment to repudiating race discrimination found in such hallowed precedents as Loving translated into a broader commitment in the body politic.