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Paige Richardson, Blog Editor, University of Cincinnati Law Review
On June 17, 2021, the Supreme Court decided the latest case to test the inherent tension between fundamental human rights and religious liberty, Fulton v. City of Philadelphia. This tension has afflicted United States jurisprudence because of the uniqueness of the First Amendment. In recent years, there has been a push from both LGBTQIA+ groups and religious liberty groups to litigate this issue in front of the Supreme Court. Rather than provide answers, guidance, and solid jurisprudence, the Supreme Court punted the issue once again in Fulton.
In Pennsylvania, individual counties are responsible for creating a foster care system to serve the best interests of the children of Pennsylvania. The Department of Human Services (“DHS”) is in charge of foster care in the County. DHS contracts foster care services out to independent agencies. One of those agencies was Catholic Social Services (“CSS”). As an agency contracting with DHS, CSS signed a contract agreeing to abide by certain rules. One provision instructs that the contracting agency shall not “discriminate or permit discrimination against individuals…on the basis of…sexual orientation [or] gender identity.” Breaching the service contract could result in suspension or termination of the contract.
In March 2018, DHS learned from a reporter that two of its agencies have policies that “deny their publicly-funded services to married same-sex couples.” CSS refused to allow same-sex couples to become foster parents even if the couples met all other state regulations for fostering.  Additionally CSS “would not provide a same-sex couple with a home study as part of a same-sex couple’s application for adoption.” When asked, a representative for CSS stated, “I am following the teachings of the Catholic Church.”
DHS suspended its contract with the two agencies, in breach of the contract, upon opening an investigation. On the same day, Philadelphia City Council “separately passed its own resolution” allowing a committee to investigate DHS for discriminatory policies involving LGBTQIA+ foster parents. Both DHS and the City of Philadelphia testified that they would like to continue contracting with CSS so long as it agrees to abide by the contract.
Both the trial court and the appellate court found that preliminary injunction in favor of the plaintiffs—Fulton and CSS, among others—was inappropriate for a number of reasons. First, the trial court examined factual precedent involving similar situations in other states and found that faith-based foster agencies were not given free license to discriminate against same-sex parents. Second, the trial court found that under contract law, CSS was obligated to abide by the Fair Practices Ordinance requiring contracting foster agencies to not discriminate or allow discrimination against same-sex couples. Third, the trial court found that CSS’s First Amendment claims and Pennsylvania Religious Freedom Act (“RFRA”) claim were not likely to succeed largely and most relevantly because the contract was generally applicable as required by Employment Div. v. Smith. Fourth, the trial court determined that CSS and the other plaintiffs could not show that irreparable harm would result from failure to award a preliminary injunction forcing the City of Philadelphia to retain its contract with CSS while it was in breach. Finally, the trial court found that when the harms were balanced and the public interest considered, the City’s interests prevailed.
The appellate court affirmed the trial court. On grant of certiorari, the Supreme Court found only that the contract used by the City was not generally applicable. The Supreme Court did not overturn Smith, nor any of the decisions analyzed as factual precedent by the trial court, and did not rule on CSS’s First Amendment or RFRA claims. In fact, the Supreme Court decision implied that if the City removed one provision from its contract—a provision granting DHS discretion to provide exceptions to the Fair Ordinances Practice—there may not have been an issue at all.
This decision is problematic in a number of ways. The Supreme Court decision implicates the principles of federalism and contract law as the Supreme Court has previously been extremely hesitant to venture into state contractual disputes. It also implicates family law matters and what constitutes the best interests of the child. While these are immensely important issues that deserve analysis, this blog will focus specifically on the judicial limbo that LGBTQIA+ people face in regard to their rights as a direct effect of the Supreme Court’s inability to decide fundamental human rights cases.
Religious liberty jurisprudence is constantly shifting. However, one truism that remains the same is that anyone is guaranteed an absolute right to believe whatever they would like to believe. However, the right to act on that belief is not, and never has been, absolute. This longstanding tenet of federal jurisprudence maintains that conduct must be regulated to preserve public policy. The right to religious conduct is usually even more limited where the conduct could implicate the welfare of children.
Another jurisprudential consideration is found within the Obergefell decision. Much of the decision relied on the fundamental fairness that same-sex couples are due. Justice Kennedy noted that in the interest of fairness, same-sex couples must be allowed to marry and reap the benefits of marriage just as straight couples are allowed to do. Allowing a publicly funded service to treat married, straight couples with greater preference than same-sex couples effectively overturns the Obergefell rationale.
The Court’s inability to follow precedent and to make decisions regarding fundamental human rights endangers LGBTQIA+ people. States, including Ohio, have capitalized on this lack of federal precedent by adopting medical practitioner conscience provisions that allow providers to refuse medical service to LGBTQIA+ people. Depending on the election cycle, the state, and the makeup of the federal government, LGBTQIA+ rights are in a constant state of flux. Additionally, the legal arguments, and particularly the Supreme Court decisions on LGBTQIA+ rights, have ignored the fact that LGBTQIA+ people are a marginalized and oppressed community. Instead, in a massive reversal, many arguments frame LGBTQIA+ people as oppressors, rather than the oppressed. This misrepresentation and mis-framing of basic human rights and civil rights issues, muddy what should be simple discrimination cases.
Finally, in a prior blog, I suggested that the Court’s inability to create solid jurisprudence on the religious liberties versus fundamental human rights issue suggests that this may be a nonjusticiable question. If the Court is unable to create judicially manageable standards to resolve conflicts, then perhaps another branch of the government should do so. For example, Congress has been considering, and could soon be poised to pass, the Equality Act. The Equality Act would expand Equal Protection laws to include LGBTQIA+ people.
In conclusion, The Supreme Court has failed to provide legitimate guidance in areas where fundamental human rights and religious liberties intersect. In doing so, the Court has disregarded both First Amendment precedent and LGBTQIA+ rights precedent. The result in Fulton is the endangerment of foster youth, who tend to be LGBTQIA+ themselves. The result in general is the polarization of religious and LGBTQIA+ issues, and the endangerment of LGBTQIA+ people, who have yet to experience the full rights and liberties afforded to other individuals in this country. This is not purely an LGBTQIA+ issue. In 2019, a wedding venue in Mississippi refused to serve a mixed-race couple on religious conscience grounds. The contraction of anti-discrimination law affects all communities and deserves a proper resolution.
 141 S.Ct. 1868 (2021).
 See i.e., Burwell v. Hobby Lobby, Inc., 573 U.S. 682 (2014); Masterpiece Cakeshop, Ltd. v. Colorado Civil Rights Comm’n, 138 S.Ct. 1719 (2018); U.S. Const., amend. I (“Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof”).
 See Masterpiece Cakeshop, 138 S.Ct. 1719 [hereinafter referred to as Masterpiece I]; Fulton, 141 S.Ct. 1868; Masterpiece Cakeshop, Inc. v. Elenis, 445 F. Supp. 3d 1226 (Phillips, the owner of Masterpiece Cakeshop, sued the Colorado Civil Rights Commission for investigating claims that he discriminated against a transgender woman weeks after the Masterpiece I decision was released) [hereinafter referred to as Masterpiece II].
 See Masterpiece I, 138 S.Ct. 1719 (holding only that the Colorado Commission made a mistake in its investigation of discrimination claims); Bostock v. Clayton Cty., 140 S.Ct. 1731 (2020) (holding that Title VII anti-discrimination on the basis of sex applies to sexual orientation and gender identity, but including dicta allowing for religious exemptions); Fulton, 141 S.Ct. 1868 (holding only that a contractual provision rendered the City contract not generally applicable); see also Obergefell v. Hodges, 576 U.S. 644 (2015) (holding that same-sex marriage is legal, but including statements that individuals and religious organizations are afforded First Amendment protection for their beliefs, advocacy, and teachings).
 Fulton v. City of Philadelphia, 320 F. Supp. 3d 661, 669 (E.D. Pa. 2018), aff’d, 922 F.3d 140 (3d Cir. 2019), rev’d and remanded sub nom. Fulton v. City of Philadelphia, 141 S.Ct. 1868 (2021).
 Id. at 670.
 Id. at 670-71.
 Id. at 671.
 Id. at 672.
 Id. at 673.
 Id. at 674.
 Id. at 704; Fulton, 922 F.3d 140, 165 (3d Cir. 2019).
 Fulton, 320 F. Supp. 3d at 676-677 (analyzing decisions from Massachusetts; Washington, DC; and Illinois).
 Id. at 677-80.
 494 U.S. 872 (1990).
 Fulton, 320 F. Supp. 3d at 677-700.
 Id. at 700-703.
 Id. at 703-704.
 Fulton, 922 F.3d 140, 165 (3d Cir. 2019).
 Fulton, 141 S.Ct. 1868, 1878 (2021).
 See generally, Fulton, 141 S.Ct. 1868 (2021).
 See id.; see also id. at 1930 (Gorsuch, J., concurring).
 G. Richard Shell, Contracts in the Modern Supreme Court, 81 Cal. L. Rev. 431-529 (1993).
 Fulton, 320 F. Supp. 3d at 670 (framing the issue around the “best interests of each child”); see also Laura Baams, Ph.D., et al., LGBTQ Youth in Unstable Housing and Foster Care, Am. Academy of Pediatrics (2019), https://www.childrensrights.org/wp-content/uploads/2019/04/2019.02.12-LGBTQ-Youth-in-Unstable-Housing-and-Foster-Care.pdf (finding that 30.4% of youth in foster care identify as LGBTQ and 5% identify as transgender); Danielle Taylor, Same-Sex Couples Are More Likely to Adopt or Foster Children, United States Census Bureau (Sept. 17, 2020), https://www.census.gov/library/stories/2020/09/fifteen-percent-of-same-sex-couples-have-children-in-their-household.html (finding same-sex couples are four times more likely to adopt than straight couples).
 Cantwell v. Connecticut, 310 U.S. 296, 303-04 (1940).
 Walker v. Johnson, 891 F.Supp. 1040, 1047 (M.D. Pa. 1995) (citing Varnum v. Varnum, 155 Vt. 376 (1990)); see also supra n. 31 (showing LGBTQIA+ youth are disproportionately placed in the foster care system. An argument could be made that an organization like CSS that will not even consider placing children with LGBTQIA+ parents, would never have LGBTQIA+ children’s best interests at heart.)
 576 U.S. 644 (2015).
 Id. at 667-669.
 See Jordan Laird, Ohio Doctors Can Now Deny Service on Moral, Religious Grounds, WCPO (July 5, 2021), https://www.wcpo.com/news/government/state-government/ohio-state-government-news/ohio-doctors-can-now-deny-service-on-moral-religious-grounds.
 Logan S. Casey, et al., Discrimination in the United States: Experiences of Lesbian, Gay, Bisexual, Transgender, and Queer Americans, Health Serv Res. 2019 (LGBTQIA+ Americans reported high rates of medical discrimination leading to poor health); Tim Fitzsimons, Nearly 1 in 5 Hate Crimes Motivated by Anti-LGBTQ Bias, FBI Finds, NBC (Nov. 12, 2019) (finding LGBTQIA+ motivated hate crimes rose in 2019, despite crime rates going down nationally. Also finding that LGBTQIA+ hate crimes were more likely to be directed at persons, rather than property); see also Calvin Coker, From Exceptions to Censorship: Religious Liberty and Victimhood in Obergefell v. Hodges, Communications and Critical/Cultural Studies (Jan. 2018).
 Id.; see also Dalia Fahmy, 8 Facts About Religion and Government in the United States, Pew Research Center (July 16, 2020), https://www.pewresearch.org/fact-tank/2020/07/16/8-facts-about-religion-and-government-in-the-united-states/ (Every State Constitution references God or the divine. God also appears in the Declaration of Independence, the Pledge, and on U.S. currency. 88% of Congress people were Christian in 2019. Almost all U.S. Presidents have been Christian. Roughly half of Americans feel it is at least important for a President to have strong religious beliefs. Roughly half of American believe the Bible should influence U.S. laws. A third of Americans say government policies should support religious values.).
 Paige Richardson, Civil Rights’ Missing Piece: The Equality Act, U.C. L. Rev. (May 21, 2021), https://uclawreview.org/2021/05/21/civil-rights-missing-piece-the-equality-act/.
 See i.e., the Masterpiece I decision only creating more litigation leading to Masterpiece II.
 Equality Act, H.R.5, 117th Cong. § 1101(5) (2021).
 P.R. Lockhart, A Venue Turned Down an Interracial Wedding, citing “Christian Belief.” It’s Far From the First To Do So, VOX (Sept. 3, 2019), https://www.vox.com/identities/2019/9/3/20847943/mississippi-event-hall-interracial-couple-wedding-religious-exemption.