US Supreme Court Avoids Sweeping License to Discriminate

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Human Rights Campaign Legal Director Sarah Warbelow speaks at a rally on the steps of the Supreme Court on Thursday, June 17, 2021 in Washington, D.C. following the Fulton decision.
© 2021 Kevin Wolf/AP Images for The Human Rights Campaign

In a highly-anticipated ruling today, the US Supreme Court sidestepped an apparent clash between religious freedom and the rights of lesbian, gay, bisexual, and transgender (LGBT) people. Although the court refrained from granting a sweeping license to discriminate, the case illustrates why the US needs robust anti-discrimination protections for taxpayer-funded services.

The case, Fulton v. City of Philadelphia, was brought by a Catholic foster care agency claiming that an anti-discrimination provision in the city’s contract with foster care providers violated its religious freedom.

The court affirmed that the interest in treating LGBT parents and children equally “is a weighty one,” but said the city hadn’t explained why some agencies could theoretically receive an exemption under the contract, but the Catholic group would not receive one.

The narrow ruling does not give religious entities a sweeping right to violate nondiscrimination laws. Nonetheless, the lawsuit is part of a worrying pattern where litigants assert the freedom of religion to deny other people their rights – in this case, the right to access taxpayer-funded services without discrimination.

These cases threaten to strike the wrong balance between equality and religious freedom. As Human Rights Watch has documented, sweeping religious exemptions inflict real harm on LGBT people and others in the United States. The International Covenant on Civil and Political Rights, a human rights treaty ratified by the US, draws a distinction between the freedom of belief, which is absolute, and the freedom to exercise religion, which can be limited when it infringes on the rights and freedoms of others.

The UN special rapporteur on the freedom of religion or belief has similarly noted that when states advance the right to manifest one’s faith, they must ensure “this does not have the effect of impairing the enjoyment of the rights to equality and non-discrimination of any member of society.”

Governments have a human rights obligation to ensure their services are available to all qualified applicants without discrimination based on sexual orientation or gender identity. Now lawmakers should redouble efforts to enact the Equality Act, which would ensure that child welfare agencies that receive federal funding do not discriminate against LGBT parents, and to ensure that LGBT people are treated equally in adoption and foster care services across the United States.