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.