Supreme Court Members 2021
Members of the Supreme Court pose for a group photo at the Supreme Court in Washington, Friday, April 23, 2021. Seated from left are Associate Justice Samuel Alito, Associate Justice Clarence Thomas, Chief Justice John Roberts, Associate Justice Stephen Breyer and Associate Justice Sonia Sotomayor, Standing from left are Associate Justice Brett Kavanaugh, Associate Justice Elena Kagan, Associate Justice Neil Gorsuch and Associate Justice Amy Coney Barrett. (Erin Schaff/The New York Times via AP, Pool)

Sometimes the oracles of the law speak out boldly—as they did in cases like New York Times v. Sullivan (press freedom) or Obergefell v. Hodges (same-sex marriage).

At other times, they sound more, well, oracular—less like Moses at Mt. Sinai and more like Mattel’s Magic 8 Ball, boldly proclaiming something like BETTER NOT TELL YOU NOW.

The nine members of the 8-Ball mumbled last week in a case called Fulton v. City of Philadelphia. Since November, lawyers, clergy, legislators, family-services specialists, and lay people have been looking to the court for guidance on an important question: what is the constitutional status of laws that protect LGBTQ people from discrimination?

Seventy percent of Americans support same-sex marriage—including, according to a recent Gallup Poll, a majority of Republicans. But a significant minority of religious Americans oppose it, and many of them believe that homosexuality itself is a sin that should be outlawed. Some of those believe that even to passively acknowledge the existence of same-sex marriage is a sin that should not be forced upon them by the law. Now that the court has recognized that LGBTQ people are free to choose their intimate relationships, and that same-sex marriages are valid throughout the country, the lingering question is whether “religious liberty” requires that religious objectors be exempted from gay-rights statutes.

Fulton is a challenge to a Philadelphia city regulation requiring its contractors not to discriminate on a number of bases, one of which is sexual orientation. A private agency named Catholic Social Service is one of a number of such agencies that have been funded by the city to place foster children in suitable temporary homes. CSS, however, has stated that it would refuse to begin the placement procedure if a same-sex couple, married or not, applied to be foster parents. Philadelphia cut off the placement funding to CSS (city money continued to flow for other services). CSS went to court, arguing that requiring it to evaluate same-sex couples violated its First Amendment right to “the free exercise” of religion. In the universe of free-exercise exemption claims, this one is pretty extreme; CSS believes it has a right not only to exclude same-sex couples, but to receive taxpayer funds to indulge their preferences.

Last week, the court managed to award CSS at least a temporary win; the city could not enforce its regulation, the majority held, because the non-discrimination regulation contained language allowing exemptions in a city official’s “sole discretion.”

The court majority said that language means that the law is not “neutral and generally applicable.” Those are magic words, because under a case called Employment Division v. Smith, if a law is “neutral and generally applicable,” the Free Exercise Clause would not require the state to exempt religious objectors. If it is not neutral, in religious-freedom cases, the court applies “strict scrutiny.” That’s a legal term meaning that a law must be “narrowly tailored to further a compelling state interest”—a hard bar to clear. The Civil Rights Act of 1964’s ban on “whites only” restaurants survived a religious-freedom challenge in 1968; since then, religious opposition to integration or miscegenation does not require exception to laws against racial discrimination. (In fact, the court termed that claim “patently frivolous.”)

What about gay-rights laws? By a 6-3 majority, the court in Fulton last week held that the Philadelphia statute 1) wasn’t neutral and 2) didn’t pass “strict scrutiny.”

At face value, this would seem like a blow to LGBTQ people and same-sex couples. The implication is that homophobia is in some way not as bad as racism, that combatting it is not a “compelling interest.” Religious objection can’t override legislative protection against race discrimination. But it can override gay-rights statutes.

A close read, however, shows a different Magic 8-Ball message: ASK AGAIN LATER.

It was clear from the moment the court granted review that the importance of protecting gays and lesbians was at stake in Fulton. During oral argument in November, Justice Elena Kagan broached that issue.

The Trump Administration had entered the case as amicus to argue that Catholic Social Services had a religious-freedom right to enter into city contracts while rejecting anti-discrimination rules—in fact, that the city was required to keep renewing its contract with CSS. Kagan was questioning Hashim Mooppan, the Trump-appointed counselor to the Solicitor General.

Earlier, Mooppan had told Justice Samuel Alito that Philadelphia could enforce, without a religious exemption, such a rule against excluding mixed-race couples. That, he said, was because of “the significant compelling interest in that context.”

“If I understood you correctly,” Kagan said, “you said that it is a compelling state interest to eradicate racial discrimination, but it is not a compelling state interest to eradicate discrimination on the basis of sexual orientation. And I was wondering where in this scale that you’re using would discrimination on the basis of gender come. Would that be a compelling state interest?”

It didn’t matter, Mooppan argued, because the policy at issue in this case had the “sole discretion” language.

Kagan dogged his steps. “Do you think there’s a compelling state interest to try to eradicate discrimination against gays and lesbians? Is that a compelling state interest?”

At this point, Mooppan, like Billy Flynn from Chicago, went into his dance. He said the government was “not denying the significance of that interest in the abstract.”

“Is it a compelling state interest, Mr. Mooppan?”

“In the abstract, perhaps,” Mooppan began.

“Is it perhaps, or is it yes or is it no?”

Mooppan kept razzle-dazzling until Chief Justice John Roberts told Kagan her time was up. But her question is the one that’s been asked ever since the day the same-sex marriage cases were decided.

Last week, the court bought Mooppan’s “exceptions” argument—and Kagan joined a six-Justice majority to do so (the vote was unanimous, but Justices Clarence Thomas, Samuel Alito, and Neil Gorsuch wrote separately to advocate for much broader protection for religious bodies).

The majority, however, cheated; it misapplied the “strict scrutiny” test. Remember: if the law is “neutral and generally applicable,” it doesn’t need to pass the test. The majority said that the “sole discretion” language means the regulation isn’t neutral and must pass the test.

Then the majority said the regulation could not pass the test. Why, though? Does this mean that protecting same-sex couples isn’t a “compelling” interest—that it is in some way of lesser value than protecting racial minorities?

Magic 8 Ball says… REPLY HAZY.

Philadelphia’s interest in protecting same-sex couples, the majority noted, was “a weighty one.” But it wasn’t “compelling.” Why not? Not because of anything about LGBTQ people or about anti-discrimination law in general; the interest wasn’t “compelling” because the regulation contains “a system of exceptions.”

As a feat of judicial double-dealing, this trick is worthy of the immortal Scarne. It’s a bit like the old con where the grifter talks the mark into giving him two $10 bills for one $5. The law had to be subject to strict scrutiny because it contained exceptions. And it cannot pass strict scrutiny because… it contained exceptions. The majority got out of the opinion without giving any legal verdict on the importance of equality for LGBTQ people and same-sex couples (there’s no constitutional meaning to “weighty”). Philadelphia’s interest isn’t compelling because Philadelphia didn’t act as if it is.

It’s important to understand that Fulton did not ask whether the Constitution itself forbids discrimination against same-sex couples. The Fourteenth Amendment provides that all persons in the U.S. must receive “the equal protection of the laws,” but applying those abstract words has created a plethora of court decisions assessing “how bad” different forms of discrimination are. Age, the court has held, is a perfectly rational one; national origin is “suspect,” etc. Protections for LGBTQ civil rights are found, if at all, in state or local laws passed by elected officials. The question, then, is whether a city or state government can decide that same-sex couples should be protected against discrimination and refuse to contract with religious groups who defy that rule. Local and state civil-rights statutes protect against many forms of discrimination: race, sex, religion, age, disability, pregnancy, veteran status, and others. They embody a general decision by elected bodies that a state has a vital interest in the equal treatment of its citizens, whether judges approve or not. Is there something about sexual orientation that requires a religious exemption when other such laws do not?

To many church and religious-rights groups, the answer is clearly yes. “While CSS’s ideas about marriage are likely to be objectionable to same-sex couples,” Justice Samuel Alito wrote in an impassioned separate opinion, “lumping those who hold traditional beliefs about marriage together with racial bigots is insulting to those who retain such beliefs.” These “traditional beliefs” must prevail, even of that means permitting religious people and bodies to exclude same-sex couples altogether, he wrote.

In fact, he argued, CSS has not only a religious right, but a free-speech right, to refuse to deal with same-sex couples. Discrimination against these couples, it turns out, is not discrimination at al—it is merely protected speech. “CSS’s policy has only one effect: It expresses the idea that same-sex couples should not be foster parents because only a man and a woman should marry. Many people today find this idea not only objectionable but hurtful.” He added a page later, “Suppressing speech—or religious practice—simply be­cause it expresses an idea that some find hurtful is a zero-sum game.”

This one is the old Spanish Handkerchief trick: the grifter nabs the sack of money and leaves the mark holding an empty bag. The City of Philadelphia regulation was not aimed at speech or ideas. Catholics or any other religious groups are more than free to express their opposition to same-sex marriage. The Philadelphia regulation aimed at protecting living individuals and families from being excluded from city-funded services. Exclusion may or may not be permissible; but as sure as God made cheesesteaks, it isn’t speech. The Philadelphia regulation was a moderate one. It didn’t abolish all aid to CSS because of their stance on same-sex marriage, as it might have. It only prohibited city dollars, funded in part by LGBTQ citizens, from financing a discriminatory practice. That’s a restriction of speech only if you considered speech to be publicly financed social work.

In Alito’s formulation, Philadelphia becomes a heartless Nebuchadnezzar demanding that modern-day martyrs deny their faith. There’s only one side to this conflict, he says, and it is the religious side.

What if, for a moment, we just sat with this case to its full extent? On the one side are living individuals who have been taught, and believe, that homosexuality is a sin and that they must not countenance it, even passively. They will experience pain if required to override that belief. On the other side are living individuals whose marriages and families express their identities and their deepest values, secular and spiritual. They, too, will experience pain and loss if excluded from government programs and public accommodations.

How do we resolve that conflict? That’s the question Kagan was trying to get Mooppan to grapple with.

Eventually the choices are stark. Is rejection of LBGTQ people a part of the “traditional” palette of American belief, a religious right that must remain in place? Or is it homophobia, the moral equivalent of racism and misogyny, historically linked to a searing history of persecution against LGTBQ Americans? The subject is not “compelled speech” vs. saintly nuns; it is two sets of humans, with needs and emotions.

The overall issue is a hard one, but at the very least I believe no agency is entitled to take a couple’s tax monies and then refuse to serve them because it disapproves of their family structure. Other smart people disagree. There’s every indication that the issue has divided the Justices just as it has other Americans, and the court doesn’t want to decide it until it really has to.

This court is divided, and the Justices are feeling their way to an accommodation that will keep from shaking itself to pieces now that their court has become an overtly partisan body—if such an accommodation can be found.

The 8-Ball has already dodged the question once, in 2018, when it considered the case of a Christian baker who offered wedding cakes to the public but refused to obey a Colorado “public accommodation” statute requiring him to bake a cake for a same-sex couple. The Justices got out of that dilemma by noting that one member of the Colorado Civil Rights Commission had made some hostile remarks about Christianity. It was a puzzling sidestep; the decision didn’t invalidate the statute, but it did void that particular order—exactly the way the “exceptions” voided the Philadelphia regulation.

But last week, a state court in Colorado upheld a fine against the very same baker for refusing to bake a “transition cake” for a transgender customer. The conflict between LGBTQ rights and religious sensibilities is coming back. Dodging won’t make it disappear. A court that is deeply split along cultural and religious lines is going to have to face it sooner or later.

Counting noses, I am not feeling eager to know what they actually think.

What will happen, Magic 8 Ball?


Garrett Epps

Follow Garrett on Twitter @ProfEpps. Garrett Epps is legal affairs editor of the Washington Monthly. He has taught constitutional law at American University, the University of Baltimore, Boston College, Duke, and the University of Oregon. He is the author of American Epic: Reading the U.S. Constitution.