Religious adoption agencies live to fight another day at the Supreme Court

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On Thursday, the US Supreme Court ruled 9-0 that a Catholic Social Services adoption agency in Philadelphia could continue to place children only with heterosexual couples, consistent with the biblical definition of a family.

Though The New York Times depicted the ruling as a setback for gay rights and “evidence that religious groups almost always prevail in the current court,” it was far from either. The ruling settled nothing in the culture war between traditional religion and LBGT advocates.

Only a narrow point of law managed to hold together the 9-0 majority. The ruling doesn’t guarantee that religious organizations like Catholic Social Services will be able to practice their mission instead of being shut down. As Justice Samuel Alito wrote in protest (though he joined the ultimate outcome), the ruling “might as well be written on the dissolving paper sold in magic shops.”  

For more than half a century, CSS placed children in foster and adoptive homes, according to its belief that “marriage is a sacred bond between a man and a woman.” No same-sex couple ever asked the agency for help or CSS would have referred the couple to another agency.

In 2018, after a newspaper article quoted the Archdiocese of Philadelphia as saying that the agency didn’t serve same-sex couples, the city refused to renew its contract. Both the federal district court and the Court of Appeals for the Third Circuit rejected the agency’s claims that its constitutional right to practice its faith had been infringed. But on a narrow point, the supremes reversed those lower-court rulings.

The nine justices were able to agree on only one thing — that a section of the relevant Philadelphia law governing the right of agencies to refuse to certify potential parents gave the city such a wide level of discretion that it couldn’t possibly have been applied in a neutral manner to the Catholic agency. This meant that the Philly law wasn’t covered by the Supreme Court’s earlier ruling in Employment Div., Dept. of Human Resources of Oregon v. Smith.

That 1990 precedent held that a law could impinge on a religious practice as long as it didn’t expressly and intentionally target it. The ruling upheld the firing of a government employee for smoking peyote, even though the employee claimed peyote was part of his religious ritual. 

All the city of Philadelphia has to do is remove the offending section from its law books, and it will be free to bar Catholic Social Services from offering adoption services.  

What Justices Alito, Clarence Thomas and Neil Gorsuch argued in concurring opinions is that it’s time for the court to get to the heart of the matter. They declared that the 1990 precedent “urgently calls out for review,” warning that it “cannot be squared with the Free Exercise Clause of the First Amendment.”

The dangers posed by that precedent “are not hypothetical.” A liquor law could have the practical effect of banning the use of wine in sacraments. A prohibition on butchering live animals could in effect ban kosher meat. Or to the point, banning discrimination based on sexual orientation can put religious adoption agencies out of business.  

Is our society so divided that we can’t live and let live — respect the rights of people of all sexual orientations but still allow people of faith to practice their beliefs?

The Supreme Court legalized gay marriage in 2015, and court rulings across the nation since then have guaranteed gay couples the right to adopt. The data show 21 percent of same-sex couples have adopted children, about seven times the rate for traditional couples.

But religious adoption agencies are being taken prisoners in the culture wars. Bethany Christian Services, one of the largest adoption and foster care agencies in the nation, had been finding homes for children for 77 years and operates in 32 states. But on March 1, it concluded that it had to start placing children with LGBTQ couples, against its principles, in order to maintain its government contracts.

There should be room for religious agencies to offer adoption services consistent with their creed and their centuries of service. The high court’s 9-0 ruling offers them no protection. As Alito concluded, “Those who count on this court to stand up for the First Amendment have every right to be disappointed — as I am.” 

Betsy McCaughey is a former lieutenant governor of New York.

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