Obergefell, Masterpiece Cakeshop, Fulton, and Public-Private Partnerships: Unleashing v. Harnessing 'Armies of Compassion' 2.0?
Family Court Review (Forthcoming)
38 Pages Posted: 20 Sep 2021 Last revised: 11 Nov 2021
Date Written: September 17, 2021
Fulton v. City of Philadelphia presented a by-now familiar constitutional claim: recognizing civil marriage equality—the right of persons to marry regardless of gender—inevitably and sharply conflicts with the religious liberty of persons and religious institutions who sincerely believe that marriage is the union of one man and one woman. While the Supreme Court’s 9-0 unanimous judgment in favor of Catholic Social Services (CSS) surprised Court-watchers, Chief Justice Roberts’s opinion did not signal consensus on the Court over how best to resolve the evident conflicts raised by the contract between CSS and the City of Philadelphia. This article argues that it is productive and illuminating to compare such conflicts over public-private partnerships and the best understanding of pluralism in a constitutional democracy with controversies arising twenty years ago over the faith-based initiative launched by President George W. Bush with the blueprint, Rallying the Armies of Compassion. That initiative also rested on premises about the place of religion in the public square and the role of civil society in carrying out governmental purposes. In both contexts, concerns over “discrimination” took two forms: first, that religious entities who contract with government might be subject to governmental discrimination in not receiving funding and, second, that religious entities who contract with government might themselves engage in discrimination. This article evaluates how the parties and their amici in Fulton argued over these forms of discrimination. It highlights how, in doing so, they enlisted or rejected analogies between race and sexual orientation discrimination—and between objections to interracial marriage and same-sex marriage—that were powerful, pervasive, and contested in Obergefell v. Hodges and Masterpiece Cakeshop v. Colorado Civil Rights Commission but scarcely featured in Roberts’ Fulton opinion.
Keywords: religious liberty, First Amendment, faith-based initiative, public-private partnerships, foster care, same-sex marriage, public accommodations law, bigotry, racism
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