scotus fostercare ruling

How are you celebrating Pride Month this year? Are you putting a little rainbow circle around your Twitter profile picture? Attending an in-person Pride parade? Watching Laverne Cox’s groundbreaking Netflix documentary “Disclosure” about transgender representation in the media?

Well, if you’re one of the nine justices on the U.S. Supreme Court, it looks like your idea of a fun Pride event is to rule that the city of Philadelphia is legally required to refer foster children to a local Catholic foster care program which prohibits same-sex couples from fostering children on religious grounds. 

On Thursday, the Supreme Court issued a unanimous ruling in Fulton v. City of Philadelphia, where they held that the city’s refusal to contract with Catholic Social Services for foster care services unless the group agreed to certify same-sex couples as foster parents violates the free exercise clause of the First Amendment.

We’ve known for a while that, at least under the Constitution, it is legal for select invididuals to discriminate against gay people on the basis of religion. Since the Supreme Court issued their ruling on Masterpiece Cakeshop, LTD., v. Colorado Civil Rights Commission in 2018, it’s been clear that private businesses basically have the right to refuse service to anyone.

When the Masterpiece Cakeshop ruling initially came out, I was shocked and upset that the highest court in our land would allow a business to not serve gay people. But since then, I’ve had several stints in the service industry, and I’ve really come to appreciate the fact that we can refuse service to anyone — though instead of discriminating against gay people, we mostly just don’t serve creepy old men who hit on the teenaged workers. Besides, I don’t want to patronize businesses that don’t respect gay people.

But to say that the government of the United States must contract with a group that discriminates against same-sex couples? That’s frightening.

The legal basis this case relies upon is the idea from the First Amendment that the government can’t make any rules that prohibit anyone from practicing their religion. So, obviously, we can’t stop people from praying, gathering or fasting. Makes sense to me, but then we get to the idea that discriminating against gay people is a religious practice.

It’s ridiculous to include discrimination or refusal of service in the umbrella term of “religious practices” for several reasons. All the other religious practices I mentioned don’t bring any harm to other people — it’s just an individual expressing themselves, which is what the First Amendment is all about. But even the Supreme Court has recognized that there are limits to personal freedom when it comes to the safety of others. You can yell whatever you want in front of the Nebraska State Capitol, but you can’t yell “fire” in a crowded theater because that may cause harm to other people.

So if we as a country are able to establish and accept that there are limits to free speech, why does the highest court in our nation refuse to set these limits on other aspects of the First Amendment? I understand that religion is a complicated topic, and there are so many nuances to consider. It makes sense that the government shouldn’t be able to force a Catholic doctor to perform an abortion because the government shouldn’t be able to force private citizens to do things that go against their religious beliefs.

Following this line of logic, the SCOTUS decision makes some sense; the main issue in the case is that the city of Philadelphia refused to contract with the CSS unless they changed their policy to allow same-sex couples to foster children. But where that logic breaks down is the fact that the ruling seems to equate the government’s decision of whether or not to enter a contract with a private business with the government telling a business what their policies should be.

Yes, in this case the city of Philadelphia was refusing to contract with this CSS group unless they allowed same-sex couples the same rights to foster children as opposite-sex couples. But — and this is a big but — the government was not forcing the group to change any of their policies. In fact, the city continued to work with CSS for other foster care services, such as operating group homes. 

CSS could have very easily said, “Oh, well, we don’t believe in rights for gay parents, so we’re not doing to do that.” And the city of Philadelphia would have said, “OK, that’s dumb, but whatever, we’ll find another foster care association to contract with that isn’t so bigoted,” which is what the city was doing.

That’s why this decision is so preposterous to me. It’s essentially saying that the government no longer has freedom of choice in private contractors — in the name of religious freedom. So if the government has to contract with private companies that discriminate against gay people in the name of religion, and the government is giving business to these private companies, the government is literally perpetrating discrimination against queer people.

I acknowledge that to some people, same-sex couples are still really hard to wrap their heads around. I don’t understand it at all, but I do know that a lot of those people exist, and I know that they have the legal right to discriminate against gay people. I understand that this is a right enshrined in our Constitution. 

But I’m deeply disappointed that this Supreme Court ruling goes out of its way to explicitly enforce the idea that discriminating against the LGBTQ+ community is a “religious exercise.”

To me, this all boils down to a fun game of “which rights matter more?” And to every single justice on the highest court in the United States, it seems like the freedom to hate people because of your religion is more important than the freedom to love who you love.

Sydney Miller is a senior psychology major. Reach them at sydneymiller@dailynebraskan.com.