The Coming Threat to Gay Rights

The agency argues that the city’s refusal to contract with it constitutes discrimination against religion. It contends that despite Philadelphia’s anti-discrimination laws, the city itself considers various factors—including religious, economic, and racial considerations—when determining the placement for a child. If the city may take these factors into consideration in service of the “best interests” of the child, the agency opines, then prohibiting a Catholic adoption agency from considering the sexual orientation of potential adopting couples in the name of “religious belief” should be unconstitutional. According to the agency, if Philadelphia provides any exceptions to its general anti-discrimination policy, it must provide exceptions to that rule to religious adoption agencies as well. To not do so, the agency argues, constitutes religious discrimination, which is a violation of religious freedom as guaranteed by the free-exercise clause of the First Amendment.

This argument is not new. In Masterpiece Cakeshop, a case decided in the summer of 2018, plaintiffs argued that the Colorado Civil Rights Commission (a state government agency tasked with, among other things, conducting hearings regarding illegal discriminatory practices) applied the state’s anti-discrimination law discriminatorily against religion because it allowed cake artists to refuse requests to make cakes expressing opposition to same-sex marriage but not to decline requests for cakes in support of it. The Masterpiece plaintiffs reasoned that “a one-sided application” of the statute “defie[d] the requirements of neutrality and general applicability.” Put differently, treating refusals to design cakes that convey opposition to same-sex marriage the same as refusals that convey support is discrimination against religion.

This argument prevailed. Most commentators on the case have focused on the Court’s “animus” analysis—that “derogatory” comments against religion made by certain commissioners were an “indication of hostility [in] the difference in treatment between Phillips’ case and the cases of other bakers who objected to a requested cake on the basis of conscience and prevailed before the Commission.”

But Justice Anthony Kennedy’s reasoning went beyond that. Writing for the majority, he agreed with the plaintiffs that the Commission discriminated against religious cake artists by not applying Colorado’s anti-discrimination policy evenly. In short, the Court accepted wholesale the plaintiffs’ argument that the commission acted non-neutrally when it allowed cake artists to refuse requests to make cakes expressing opposition to same-sex marriage but not to decline requests in support of it. A key difference between the two types of “discrimination,” of course, is that there was no law in Colorado against rejecting a request to design a cake expressing opposition to same-sex marriage, while there was a law against refusing to service an individual based on his sexual orientation. But be that as it may, Kennedy, perhaps without quite realizing it, accepted the plaintiffs’ expansive definition of religious discrimination and ran with it.