The everyday challenge of Obergefell is whether those of us who hold the “decent and honorable religious” conviction that it is impossible for two persons of the same sex to marry will be accorded the legal and social space we need in order to live in accord with our convictions. The question at hand is whether we will instead be forced to contradict our convictions in word and deed, day in and day out. Chief Justice Roberts wrote in Obergefell:
Hard questions arise when people of faith exercise religion in ways that may be seen to conflict with the new right to same-sex marriage—when, for example, a religious college provides married student housing only to opposite-sex married couples, or a religious adoption agency declines to place children with same-sex married couples.
Catholic Social Services vs. the City of Philadelphia
Last week (on May 16), Catholic Social Services and several foster care parents sued the city of Philadelphia to settle one of those “hard questions.” CSS was recently ranked by the city as the second best of the twenty-eight agencies with which it contracts for foster care placement and support. Its record of finding homes for difficult-to-place children is unsurpassed. On March 15 of this year the city announced that it was nonetheless suspending referrals to CSS. Because the city monopolizes these referrals, its decision was tantamount to closing down CSS’s foster care operation.
The hanging offense? Even though CSS avers in its complaint (prepared by lawyers from the Becket Fund, the great religious liberty firm) that it has never received a complaint from a same-sex couple, it does adhere to Church teaching about marriage. The complaint makes clear enough that CSS would conscientiously refuse to do the work prescribed by law to certify a same-sex “married” couple as foster parents. CSS would, however, refer them to other agencies that would.
Philadelphia is trying to drive these “decent and honorable” people from the field. The mayor is quoted in the CSS complaint as declaring that “we cannot use taxpayer dollars to fund organizations that discriminate against” people in same-sex marriages. “It’s just not right.” The city council professed to be shocked—shocked!—to discover that some contracting agencies have policies, rooted in religious beliefs, that prohibit placement of children with “LGBTQ people.” But the Catholic Church’s position on marriage is no secret. The CSS complaint even points out that the “City has been aware of Catholic Social Services’ religious beliefs for years.” For example, the city waived repeatedly for CSS the obligation of city contractors to provide benefits to same-sex spouses of employees.