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Hey Supreme Court, Government Can't Decide 'Which Beliefs Are Acceptable'

The U.S. Supreme Court building, Wikimedia Commons, Daderot.

As America pulls out of coronavirus lockdown and struggles to bring peace to the streets amid the George Floyd riots, the Supreme Court is gearing up to consider a case of invidious discrimination against a Catholic adoption agency in Philadelphia. The City of Brotherly Love decreed that it will not work with any adoption clinic so long as the clinic refuses to endorse and certify same-sex relationships. Last week, the religious freedom law firm First Liberty Institute filed a friend-of-the-court brief to support the Catholic agency.

“The Constitution prohibits government from punishing adoption providers for acting consistently with their sincerely held religious belief that the best home for a child includes a mother and father,” Keisha Russell, counsel at First Liberty Institute, said in a statement. “Freedom loses when the government decides which religious beliefs are acceptable. The Court should ensure that religious adoption providers can continue their centuries-old work serving families and children without suffering government discrimination because of their beliefs.”

Freedom does indeed lose when the “government decides which religious beliefs are acceptable.” Yet a rising movement on the left would effectively establish a religion by embracing pro-LGBT adoption agencies and forcing any others out of business.

In March 2018, the City of Philadelphia stopped allowing foster children to be placed with families who work with Catholic Social Services (SCC), claiming that the Catholic agency either had to endorse and certify same-sex relationships or shut down. The city targeted the church regardless of the fact that not a single same-sex couple had sought foster care certification from CSS over its 100 years of service in the city. Same-sex couples easily go elsewhere. Indeed, no couple has ever been prevented from fostering or adopting a child in need because of CSS’s religious beliefs, according to the Becket Fund for Religious Liberty.

The Supreme Court announced it would take up the case in February, after the Third Circuit Court of Appeals ruled in favor of Philadelphia.

First Liberty compares Philadelphia’s ban on the Catholic adoption agency to American Legion v. American Humanist Association (2019), in which the Supreme Court upheld the constitutionality of a World War I memorial in the shape of a cross.

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In that case, the Court held that “a government that roams the land, tearing down monuments with religious symbolism and scrubbing away any reference to the divine will strike many as aggressively hostile to religion.” Therefore, “a campaign to obliterate items with religious associations may evidence hostility to religion even if those religious associations are no longer in the forefront.”

“The same principle of hostility applies when the government ‘roam[s] the land[] tearing down’ centuries-old religious institutions because of their long-standing religious practices,” First Liberty argues. “Forcing a Catholic institution to alter its well-established religious beliefs on marriage ‘would be seen by many as profoundly disrespectful.’ Consequently, because of the long-standing visibility of Philadelphia’s relationship with CSS, the City’s sudden, public rejection of the partnership with CSS because of its millennia-old religious practices will ‘no longer appear neutral,’ but instead will be ‘evocative, disturbing, and divisive.'”

“Especially in light of multiple City officials’ statements demonstrating overt hostility toward CSS’s Catholic beliefs, continuing the City’s relationship with CSS is the only way Philadelphia can demonstrate ‘respect and tolerance for differing views,’ rather than ‘a hostility toward religion that has no place in our Establishment Clause traditions.'”

First Liberty also compared Philadelphia’s attack on the Catholic adoption agency to the Colorado Civil Rights Commission, which targeted Christian baker Jack Phillips for refusing to bake a cake to celebrate a same-sex wedding. The Supreme Court ruled in his favor in 2018, ruling that Colorado had discriminated against him.

In the case of Philadelphia, “the City Council passed a resolution directing DHS to change its contracting practices and condemning ‘discrimination that occurs under the guise of religious freedom.’ The Mayor publicly disparaged the Archdiocese, calling Archbishop [Charles] Chaput’s actions ‘not Christian,’ and asking Pope Francis ‘to kick some ass here!’ The DHS Commissioner urged CSS to follow ‘the teachings of Pope Francis,’ and told it that ”times have changed,’ ‘attitudes have changed,’ and CSS should change its policy because it is ‘not 100 years ago.””

While the city argued that it was not discriminating against Catholics because a Lutheran adoption agency also fell afoul of the new regulations, First Liberty explains that “Philadelphia’s ‘campaign to obliterate’ a specific religious practice ‘evidence[s] hostility,’ regardless of whether that specific religious practice belongs to one or more religious denominations.” Indeed, that Lutheran agency, Bethan Christian Services, caved to pressure and altered its religious stance on the right environment for children.

Philadelphia “labeled CSS’s religious convictions about marriage as “discrimination that occurs under the guise of religious freedom” and implied that CSS’s inability to certify same sex couples is analogous to invidious racial discrimination.” Indeed, the city compared traditional marriage to laws that denied equal treatment for African-Americans and women, in order to “stamp out every vestige of dissent,” as Justice Samuel Alito warned in his dissent in Obergefell v. Hodges (2015), the case that legalized same-sex marriage.

“Given the reality that ‘for millennia,’ marriage was understood exclusively as ‘the union of a man and a woman,’ and despite the longstanding relationship between Philadelphia and religious adoption agencies holding this religious belief about marriage, Philadelphia decided only recently to prefer religious denominations that hold nontraditional beliefs on marriage over those that have traditional practices. And as Bethany Christian Services illustrates, an adoption agency’s only alternative to adopting the City-sanctioned belief was to close its services,” First Liberty explains.

In this case, Philadelphia endorsed one religious view of marriage over another, and it excluded a Catholic adoption agency that followed the historic Christian view of marriage and childrearing.

This is exactly the kind of religious preference that the First Amendment was written to prevent. Yet it follows after LGBT activists and state and local governments have targeted religious foster care and adoption agencies, claiming that they discriminate against same-sex couples and should therefore be excluded from the adoption process or lose any taxpayer funding for their work. They would force these agencies out of the market, leaving fewer options for needy children.

LGBT activists can make whatever arguments they desire, but the government cannot discriminate against one religious view and in favor of another. The Supreme Court must find in favor of Catholic Social Services and reverse this invidious discrimination.

Tyler O’Neil is the author of Making Hate Pay: The Corruption of the Southern Poverty Law Center. Follow him on Twitter at @Tyler2ONeil.

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