WASHINGTON — The Supreme Court is set to decide soon whether conservative Christians have a constitutional right to refuse to work with same-sex couples while participating in a city-funded foster care program that forbids such discrimination.
It is the latest and possibly most significant culture-war clash between the First Amendment’s right to the free exercise of religion — which has been bolstered of late by the court’s conservatives — and the right to marriage equality that was upheld in a 5-4 liberal decision in 2015.
With the exception of Justices Clarence Thomas and Samuel A. Alito Jr., the court has shown no sign it will retreat from the principle of equal marriage rights for same-sex couples. And last year, Justice Neil M. Gorsuch wrote a 6-3 opinion joined by Chief Justice John G. Roberts Jr. that protected LGBTQ employees from workplace discrimination under the Civil Rights Act of 1964.
However, the justices have been willing to consider whether the Constitution provides special exemptions based on religion for the “many Americans who believe that marriage is a sacred institution between one man and one woman,” as Thomas wrote in October.
Now the challenge will be agreeing on who is entitled to such an exemption and the constitutional basis for it.
Three years ago, it was thought that conservative justices would find that basis in the freedom of speech and expression. Wedding photographers, florists and, most famously, a cake maker in Colorado argued it violated their free speech rights to be forced to “create expression” for the celebration of a same-sex marriage. They objected to state civil rights laws that required providing equal service to all customers, without regard to race, religion or sexual orientation.
But the free speech claim was shown to be confusing and uncertain. Did it apply to baking a very large cake or only to the message in the icing? And who else could invoke this exemption? An attorney told the court that while a cake maker’s work was expressive, an architect’s was not.
Justice Anthony M. Kennedy, a champion of both religious liberty and gay rights, wrote the court’s opinion in Masterpiece Cakeshop v. Colorado Civil Rights Commission and found a way to rule narrowly for Jack Phillips, the cake maker, without setting a clear constitutional rule. He said one or two members of the state civil rights commission had displayed “impermissible hostility” toward the cake maker and his religious beliefs.
Three weeks later, Kennedy announced his retirement, leaving the issue unresolved.
Now the clash of rights is squarely posed by Catholic Social Services in Philadelphia, which sued after it was suspended from the city’s foster care program because it refused to consider same-sex couples. The Catholic Archdiocese of Philadelphia argues that its right to freely practice its faith outweighs the city’s authority to forbid discrimination by its contractors.