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This article first appeared on Verdict - Legal Analysis and Commentary from Justia on November 5, 2020.
Charles Binkley (@CharlesBinkley) is the director of Bioethics at the Markkula Center for Applied Ethics. David S. Kemp is Verdict’s managing editor and a professor of legal writing at UC Berkeley School of Law. Views are their own.
On Wednesday, the U.S. Supreme Court heard arguments in Fulton v. City of Philadelphia, which presents the question whether a city may exclude a Roman Catholic adoption agency from its foster care system because the agency refuses to work with gay couples, in violation of the City’s nondiscrimination laws. While the parties’ legal arguments and most commentary focus on the extent to which religious entities can claim exemptions from neutral, generally applicable laws, recently released statements by Pope Francis create tension between the petitioners’ moral claims and their legal arguments. Here we provide a brief background of the case and explore the meaning of the Holy Father’s statement in the context of Roman Catholic teachings. We propose that properly understood, his statement weakens, if not entirely undermines, the adoption agency’s moral legitimacy and legal arguments, and we argue that their continued litigation of the issue actually contravenes his call for civil protections for all families.
Background of Fulton v. City of Philadelphia
Catholic Social Services (CSS) is a nonprofit organization, operating under the auspices of the Archdiocese of Philadelphia, that provides foster care for Philadelphia children as part of its religious ministry. The City of Philadelphia partners with numerous private agencies, including CSS, to facilitate foster care, and it requires any agency providing foster care to contract directly with the City. A prospective foster family may reach out to any of these partner agencies, and the agency will conduct a home study as a first step in the process. The minimum requirements for home studies and foster parent certifications are set by state law. CSS refuses to conduct home studies of gay couples, let alone certify them as foster families, claiming that making such certifications would be inconsistent with their religious beliefs.
In March 2018, the City of Philadelphia informed the agency that unless it changed its policy of excluding gay families, the agency could no longer provide foster care to Philadelphia children. CSS refused and then sued the City in federal district court, arguing that its constitutional rights to free exercise of religion and free speech entitled it to reject qualified same-sex couples from consideration for placement of children because they were same-sex couples, rather than for any reason related to their qualifications to care for the children.
The court found in favor of the City, and the U.S. Court of Appeals for the Third Circuit affirmed. The Third Circuit found that the City’s non-discrimination policy was a neutral, generally applicable law and that CSS had not demonstrated that the City targeted CSS for its religious beliefs nor was it motivated by ill will against CSS’s religion. Under binding U.S. Supreme Court precedent, Employment Division v. Smith, neutral laws of general applicability do not violate the Free Exercise Clause of the First Amendment. The Supreme Court agreed to review the case, in part to consider whether it should overrule its own precedent.
The Pope’s Statement: Radically New or a Return to Tradition?
On October 21, 2020, after the Supreme Court granted review, but before oral argument, a documentary film “Francesco” premiered at the Rome Film Festival. The film describes the life and the teaching of Pope Francis and contains numerous interviews with Francis himself, as well as others close to him.
In the film, Pope Francis states, “Homosexual people have the right to be in a family. They are children of God.” He continues, “You can’t kick someone out of a family, nor make their life miserable for this. What we have to have is a civil union law; that way they are legally covered.”
Immediately afterward, pundits quibbled over the precise meaning of the Pope’s statement, but in the days that followed, the Vatican released an official statement explaining what the Pope meant. The first part of the Pope’s statement comes from one interview and refers to the need for gay children not to be disowned by their parents. The second part of the statement comes from a different interview, but it unambiguously manifests the Pope’s support for civil unions (but not sacramental marriage) for same-sex couples. The Vatican’s statement did not contest the meaning of this second part.
The Pope’s statement, although not holding the authority of an encyclical, nonetheless presents a serious moral, and perhaps legal affront to this case. First, although Pope Francis’s sentiment seems to contradict the generally understood teachings of the Roman Catholic Church about same-sex relationships, it actually revives a rich part of the Roman Catholic Church’s scriptural and magisterial tradition that emphasizes the intrinsic goodness of the whole person as being created in the image and likeness of Almighty God. Second, Pope Francis’s insistence on legal protections for same-sex couples’ families demonstrates his desire to protect these families from the very discrimination for which CSS seeks legal approval in this case.
The Roman Catholic Church and sacred scripture have a long history of upholding and protecting the dignity of the person, particularly the marginalized and the vulnerable. The Roman Catholic Church’s basis for the moral condemnation of homosexuality has traditionally been based on biology; same-sex genital sexual intimacy, the natural expression of romantic love, does not result in conception. Thus, any genital sexual act from which conception does not or cannot result, including contraception and masturbation, is sinful according to Roman Catholic teaching. Up until the mid-1980s, the Roman Catholic Church’s teaching largely was to respect and honor the homosexual person as a child of God, but also require of them sexual abstinence. Its stance shifted significantly in 1986 when Cardinal Joseph Ratzinger, then Prefect of the Congregation for the Doctrine of the Faith, issued a Letter to the Bishops of the Catholic Church on the Pastoral Care of Homosexual Persons. In his letter, Cardinal Ratzinger, now Pope Emeritus Benedict XVI, argued that homosexual people have an inherent tendency predisposing them to commit an act that is “intrinsically disordered,” thus homosexuality itself is an “intrinsic moral evil.”
This shift from considering the totality of the person to focusing narrowly on one biological function appears in other aspects of recent Roman Catholic moral ideology, including abortion, contraception, and medical aid in dying for the terminally ill. In this view, “life” as given by and created in the image of God is defined as a purely disembodied physiological function. This is in sharp contrast to “life” as a gift from God, lived fully in a community of love, which encompasses also the spiritual, psychological, and social aspects of the human being.
Because of this shift in ideology over the last 30 years, many Roman Catholics and non-Roman Catholics today may believe that the narrow definition represents the “true” teaching of the Roman Catholic Church. In fact, it represents only the most recent interpretation, which focuses exclusively on reproductive physiology and disregards a fuller vision of human dignity. Many claim that this richer, multidimensional understanding of the human person is more consistent with core Roman Catholic principles that have endured over the centuries and are derived from the core teachings of Jesus. The reason the Pope’s acknowledgment of the dignity of gay and lesbian individuals, their rights to enter into civil unions and establish families, and the need for laws to protect those rights may seem revolutionary is merely that it is a departure from the contemporary rhetoric of some Roman Catholic Church officials. However, many believe that the Pope’s sentiments are most consistent with the larger tradition of the Roman Catholic Church and holy scripture. It is the voice of a loving shepherd who cares for his flock and strives to protect them.
From whom does the Holy Father seek to protect God’s homosexual children? Rogue entities like CSS masquerading under the cloak of Christianity.
The Fulton petitioners and their amici advance arguments seeking broad exemptions from state and local laws—laws that simply aim to protect same-sex couples and their families from discrimination. These are the very type of protections Pope Francis was referring to when he said that same-sex couples need “legal cover[age].” CSS argues that it cannot certify same-sex couples because doing so would constitute an endorsement of their relationships in violation of CSS’s “sincerely held beliefs.” Yet whence come these beliefs? If the Pope himself endorses legal protections for same-sex couples to be able to raise their families, CSS stands as an obstacle, not an instrument, of this vision.
In the hierarchy of the Roman Catholic Church, a cardinal prefect’s letter to the bishops of the Church may have greater authority than do the words of the supreme pontiff during a TV interview. Nevertheless, the moral authority of the Pope, being the representative of Christ on earth, carries great weight for true Roman Catholics. Indeed, 27 lay Roman Catholics filed an amicus brief supporting the City of Philadelphia, pointing out that “there is extensive theological support within the Church for the welcoming treatment, not the rejecting treatment, of LGBTQ people.”
How might the Pope’s statement affect the proceedings in Fulton? In all likelihood, and judging from the oral arguments, it won’t. No justice or advocate even mentioned the Pope, and no court would assume the role of enforcing whether a religious entity is faithful to its own doctrine. (This assessment is different from evaluating whether a belief is sincerely held, which courts have also expressed hesitance to do. In her dissent in Burwell v. Hobby Lobby, Justice Ruth Bader Ginsburg noted that there is an “overriding interest” in “keeping the courts ‘out of the business of evaluating’ . . . the sincerity with which an asserted religious belief is held.”) Even if the controversy in Fulton stemmed from a clear misunderstanding of Catholic teaching, the Court would not base its decision on that error. The error would have to rise to the level of fraud (i.e., intentionally leading the Court to think one believed something that one didn’t actually believe) to affect the Court’s treatment of the case.
However, it could underscore a point made by the 27 lay Roman Catholics in their amicus brief—that by ruling for the petitioners in this case, the Court would unconstitutionally be resolving a “disputed church matter” on which there is “active religious controversy” within the Roman Catholic Church.
Alternatively, the Vatican or a representative could demand that CSS drop the case because CSS’s position conflicts with Roman Catholic teachings as expressed by Pope Francis. Though implausible, this is the most ethically sound option. Of note, Archbishop Jerome E. Listecki and the Roman Catholic Archdiocese of Milwaukee filed a brief arguing in support of CSS and endorsing CSS’s view that same-sex couples should not have children, but their position is untenable in light of the Pope’s message and the Roman Catholic Church’s teachings in the greater context. The U.S. Conference of Catholic Bishops filed a brief as well, arguing that the Roman Catholic Church’s mission of caring for orphans “is rooted in the Bible and Church teaching.” Yet if we follow this reasoning, then the bishops must believe that it is better to leave orphans without a family at all than to provide them with same-sex parents. This result is contrary to both the tradition of prioritizing the welfare of orphans and Pope Francis’s acknowledgment of the moral legitimacy of same-sex couples’ families.
Regardless of what the Court ultimately decides in this case, it exemplifies the hypocrisy of religious entities seeking permission to discriminate not based on the teachings of their religion, but the animus in their hearts.