Saturday is the six-year anniversary of the Obergefell v. Hodges ruling, in which the Supreme Court redefined marriage to include same-sex couples.
The Supreme Court’s decision has created questions of how it will treat of discrimination claims by same-sex couples and supporters of traditional marriage between one man and one woman.
Critics of proponents of traditional marriage erroneously compare them to opponents of interracial marriage.
In his Obergefell v. Hodges dissent, Justice Samuel Alito warned, “Those who cling to old beliefs will be able to whisper their thoughts in the recesses of their homes, but if they repeat those views in public, they will risk being labeled as bigots and treated as such by governments, employers, and schools.”
Nowadays, Alito’s opinion especially rings true for marriage originalists. They are being sued for declining to bake custom wedding cakes and create flower arrangements and calligraphy invitations for same-sex couples.
In his Obergefell v. Hodges dissent, Chief Justice John Roberts predicted these “hard questions,” including what would happen when “a religious adoption agency declines to place children with same-sex married couples.” As a result of the Obergefell v. Hodges decision, this would have to be addressed in court.
On June 17, the Supreme Court answered this particular hard question by ruling in favor of religious liberty and faith-based adoption in Fulton v. City of Philadelphia.
Fulton v. City of Philadelphia dealt with Catholic Social Services, a two-century old foster care agency in Philadelphia. Catholic Social Services is one of 30 foster care agencies that has an independent contractor relationship with Philadelphia.
Two years ago, Philadelphia government officials discovered from a newspaper article that Catholic Social Services does not certify same-sex couples because the Catholic Church teaches that every child deserves a mother and a father. When a same-sex couple would apply to Catholic Social Services to foster a child, Catholic Social Services would refer them to other agencies. The petitioners in Fulton v. City of Philadelphia noted that zero same-sex couples have applied to adopt from Catholic Social Services.
After verifying this part of Catholic Social Services’ certification procedure, Philadelphia officials revised its Fair Practices Ordinance on public accommodations to include sexual orientation in the anti-discrimination clause. Officials argued that foster care constitutes a public accommodation despite the fact that foster care is a selective process and not a facility open to the public, like a pool or a gym.
Due to this ordinance, Catholic Social Services could not renew their contract without violating the Catholic Church’s teachings on marriage. The city of Philadelphia, in turn, refused to work with Catholic Social Services or grant an exemption to them, although they granted exemptions for matching children with future parents based on race and disability.
The Supreme Court held that the Philadelphia statute violated the First Amendment and unanimously voted in favor of Catholic Social Services and, as a result, religious freedom.
The Fulton v. City of Philadelphia decision reaffirmed the important distinction made by the majority in Obergefell v. Hodges between opponents of same-sex marriage and interracial marriage.
In Obergefell v. Hodges, Justice Anthony Kennedy wrote that rejecting same-sex marriage based on “decent and honorable religious [and] philosophical premises” should not be “disparaged” due to the First Amendment, the court said no such thing about disagreement with interracial marriage. In fact, the court established in Loving v. Virginia, “[T]here is patently no legitimate overriding purpose independent of invidious racial discrimination.”
As Alito similarly noted in Fulton v. City of Philadelphia , the Supreme Court cannot make such a statement because racism is neither decent nor honorable. “While CSS’s [Catholic Social Services’] ideas about marriage are likely to be objectionable to same-sex couples, lumping those who hold traditional beliefs about marriage together with racial bigots is insulting to those who retain such beliefs.” In Masterpiece Cakeshop v. Colorado Civil Rights Commission, the Supreme Court cautioned against this “undue disrespect to sincere religious beliefs.”
In Obergefell v. Hodges and now in Fulton v. City of Philadelphia, the Supreme Court has stated emphatically that the government should avoid likening support for the original definition of marriage with racism. Rather, the Supreme Court has clearly stated that respect and tolerance should be given to the original view or marriage and those who hold it.
Local and federal governments must remember that the First Amendment cannot be violated simply because people disagree with or are offended by others’ beliefs, including those pertaining to marriage. As Alito stated in Fulton v. City of Philadelphia, “In an open, pluralistic, self-governing society, the expression of an idea cannot be suppressed simply because some find it offensive.”
Defending the freedom to disagree on same-sex marriage benefits qualified faith-based social service providers and the neighbors they serve. The Fulton v. City of Philadelphia decision allows Catholic Social Services to serve many more generations of vulnerable children. Protecting pluralism is the American way.
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Sometimes the oracles of the law speak out boldly—as they did in cases like New York Times v. Sullivan (press freedom) or Obergefell v. Hodges
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Rather than uphold the hard-won protections for women under the almost-half-century-old Title IX of the Education Amendments of 1972, the Biden administration continues to steamroll women’s equality and opportunity.
Citing the Bostock v. Clayton County Supreme Court ruling, the Department of Education released a notice yesterday announcing it would interpret Title IX protections against discrimination on the basis of sex to include sexual orientation and gender identity. Such radical reinterpretation is a step back from “equality for all.”
Sadly, the Biden administration’s move is not a surprise.
President Joe Biden launched what has become a full-scale effort to dismantle women’s equality. On his first day in office, Biden signed a divisive executive order that expands discrimination on the basis of sex to include sexual orientation and gender identity. A few weeks later, he nominated Miguel Cardona for education secretary. Cardona refused to acknowledge the differences in biological sex for sports during his confirmation hearing.
Biden then appointed Rachel Levine for assistant secretary of the Department for Health and Human Services. Levine refused to acknowledge the mutilation of children under the guise of “gender-affirming care.”
Just over one month ago, the Department of Health and Human Services issued a notice reinterpreting Section 1557 of the Affordable Care Act’s prohibition of discrimination on the basis of sex to include sexual orientation and gender identity. The notice cited Bostock v. Clayton County to justify its reinterpretation.
The administration’s actions undermine equality for women achieved by Title IX and the meaning and scope of Bostock v. Clayton County.
Today, Americans celebrate Title IX’s 49th anniversary. Title IX created equality and opportunity for women in educational institutions that receive federal funding by requiring equal treatment of the sexes. This applied to all education programs and activities, including athletics.
Because of Title IX, women’s athletics programs were required to have equal resources for facilities, training, recruitment, and scholarships. As a result, women’s participation in sports exploded. Since 1972, the number of high school female athletes has grown from 295,000 to 2.6 million, and the number of female college athletes has quintupled. Title IX is also credited to have decreased dropout rates and increased the number of women who pursued higher education.
Reinterpreting Title IX’s prohibition of discrimination on the basis of sex to include gender identity will result in the loss of the hard-won equality, safety, and opportunity for girls and women in school athletics. A recent British Journal of Medicine study shows that trans-identifying biological males retain competitive advantage over females even after two years of taking estrogen.
Don’t believe it? Currently, nearly 300 US high school boys can beat Allyson Felix in the 400-meter sprint. Felix is the most decorated athlete in World Athletics Championships history and six-time Olympic gold medalist.
Trans-identifying biological males dominate girls’ sports and take away opportunities created for hardworking female athletes. In Maui, Hawaii, Margaret Oneal Monteleone, a sophomore at St. Anthony School, raced against a transgender athlete who effortlessly beat the female competitors. Had she only competed against girls, Monteleone would have won. Losing out on first place can mean losing out on athletic scholarships.
The Education Department’s reinterpretation of Title IX not only undermines women’s equality in sports, but it also misapplies and misunderstands the Bostock v. Clayton County ruling.
In Bostock v. Clayton County, the Supreme Court’s ruling proceeded “on the assumption that ‘sex’ signified what the employers suggest, referring only to biological distinctions between male and female.” The ruling dealt with discrimination on the basis of sex in matters of employment according to Title VII of the Civil Rights Act. It did not redefine sex to include gender identity and sexual orientation. It also did not apply its ruling to any other part of the Civil Rights Act beyond Title VII.
This is as it should be. Jobs may be performed equally well by qualified individuals regardless of sex. Unlike matters of employment, however, sexual differences are extremely relevant when it comes to health care and athletics. Amendments like Title IX were passed because biological differences matter when it comes to fairness and opportunities in sports. The Bostock v. Clayton County ruling acknowledges this legal distinction. The Supreme Court explicitly stated that Bostock v. Clayton County cannot be used to apply to matters beyond employment nondiscrimination under Title VII.
Despite its lip-service to equality, the Biden administration’s actions speak louder than words. As Americans celebrate Title IX’s anniversary, they must not rest on the accomplishments of the past. There is need for renewed efforts in the fight for women’s equality. Freedom is never more than a generation away from extinction—and women’s freedoms are no exception.
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