By: Linda C. McClain
Published in: Family Court Review (Forthcoming)
Fulton v. City of Philadelphia presented a by-now familiar constitutional claim: recognizing civil marriage equality—the right of persons to marry regardless of gender—inevitably and sharply conflicts with the religious liberty of persons and religious institutions who sincerely believe that marriage is the union of one man and one woman. While the Supreme Court’s 9-0 unanimous judgment in favor of Catholic Social Services (CSS) surprised Court-watchers, Chief Justice Roberts’s opinion did not signal consensus on the Court over how best to resolve the evident conflicts raised by the contract between CSS and the City of Philadelphia. This article argues that it is productive and illuminating to compare such conflicts over public-private partnerships and the best understanding of pluralism in a constitutional democracy with controversies arising twenty years ago over the faith-based initiative launched by President George W. Bush with the blueprint, Rallying the Armies of Compassion. That initiative also rested on premises about the place of religion in the public square and the role of civil society in carrying out governmental purposes. In both contexts, concerns over “discrimination” took two forms: first, that religious entities who contract with government might be subject to governmental discrimination in not receiving funding and, second, that religious entities who contract with government might themselves engage in discrimination. This article evaluates how the parties and their amici in Fulton argued over these forms of discrimination.
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This article focuses on other unaddressed, significant questions in Fulton, including the precedential force and implications of the Court’s earlier decisions in Obergefell v. Hodges and Masterpiece Cakeshop v. Colorado Civil Rights Commission on a post-Kennedy and post-Ginsburg Court with a 6-3 conservative majority. As elaborated below, those cases addressed earlier iterations of the evident conflict between marriage equality—and LBGTQ equality more broadly—and First Amendment claims. I will argue that the Court’s opinion in Fulton also did not engage with analogies that were powerful, pervasive, and contested in those earlier cases: the analogy between discrimination on the basis of race and discrimination on the basis of sexual orientation and the analogy between religious opposition to interracial marriage, on the one hand, and, on the other, to same-sex marriage. Even so, those analogies featured in the Fulton briefs and in the justices’ questioning during the oral argument. Notably, a rejection of that analogy appeared in Justice Alito’s Fulton concurrence, where he argued that “lumping those [like CSS] who hold traditional beliefs about marriage together with racial bigots is insulting to those who retain such beliefs,” as well as contrary both to the majority’s “commitment” in Obergefell and to Masterpiece Cakeshop. Strikingly, Justice Alito’s rhetoric of racial bigotry echoes his earlier dissents in those very cases he now enlists. This article illustrates the different ways in which the parties and their amici enlisted or rejected the race analogy.