Brief of Amici Curiae Legal Scholars in Support of Equality in Support of Respondents, Fulton v. City of Philadelpha

Abstract

This Brief of Amici Curiae Legal Scholars in Support of Equality in Support of Respondents filed in Fulton v. City of Philadelphia addresses the propriety of an analogy to race discrimination in public accommodation cases involving sexual orientation discrimination. The race analogy in sexual orientation cases proceeds as follows: Advocates and judges widely agree that courts should, and would, reject a religious exemption claim by a public accommodation—such a foster care agency—seeking to turn away an African-American or interracial couple based on the public accommodation’s religious beliefs that Blacks are inferior to whites or that the races should not mix. The race analogy in today’s religious exemption cases is attractive to LGBT-rights advocates because the Court has—in the 1960s case of Piggie Park v. Newman—rejected a religious exemption claim in the context of racial discrimination in public accommodations.

The amicus brief addresses two common arguments made by exemption seekers against the race analogy. First, today’s exemptions seekers bristle at the comparison to Piggie Park and to the vendors of the 1960s who sought to justify racial discrimination based on religious beliefs. They contend that the vendors of the 1960s were actually racists using religion as a cover for their bigotry. In contrast, today’s wedding vendors contend that they are asserting honorable and sincerely held religious beliefs that justify sexual orientation discrimination. This amicus brief asserts that the race analogy and the honorableness of today’s exemption seekers are not mutually exclusive because (1) the exemption seekers of the 1960s were viewed as honorable and sincere by courts and the public alike; and (2) courts need not look behind the asserted religious belief to validate or critique it, but must instead accept the asserted belief at face value; any normative characterization of the asserted religious belief is thus irrelevant assessing the propriety of the race analogy.

Second, today’s exemption seekers argue that the race analogy is improper because race is subject to strict scrutiny in an equal protection analysis, whereas sexual orientation is subject to, at most, intermediate scrutiny. This argument fails because it is based on a fundamental misunderstanding of two things that are not commensurate: the relationship between the equal protection tiers of scrutiny, on one hand, and claims for religious exemptions from antidiscrimination law, on the other.

The amicus brief concludes that analogizing to race in this case requires no improper governmental assessment of religious beliefs, just as courts made no such assessment in the 1960s. The race analogy, including an analogy to Piggie Park, should thus be used in the Fulton case and others like it.

Keywords: religious exemptions, sexual orientation, antidscriminiation, public accommodations law, LGBT, first amendment, free exercise, free speech