“Because the agency understands the certification of prospective foster families to be an endorsement of their relationships, it will not certify unmarried couples — regardless of their sexual orientation — or same-sex married couples,” he wrote, adding that the agency “does not object to certifying gay or lesbian individuals as single foster parents or to placing gay and lesbian children.”
“Government fails to act neutrally when it proceeds in a manner intolerant of religious beliefs or restricts practices because of their religious nature,” he wrote, citing the court’s 2018 decision in Masterpiece Cakeshop v. Colorado Civil Rights Commission, which ruled for a baker who had refused to create cakes for same-sex wedding on narrow ground. The decision said the baker had been mistreated by members of the state’s civil rights commission who had expressed hostility toward religion.
In his concurrence, Justice Gorsuch wrote that court’s decision in the Colorado case was similar to the one on Thursday. “After being forced to litigate all the way to the Supreme Court, we ruled for” the baker, Jack Phillips, “on narrow grounds similar to those the majority invokes today.”
Litigation over Mr. Phillips’s business practices continue, Justice Gorsuch wrote. “A nine-year odyssey thus barrels on,” he wrote. “No doubt, too, those who cannot afford such endless litigation under Smith’s regime have been and will continue to be forced to forfeit religious freedom that the Constitution protects.”
The foster care agency relied on the Colorado decision, arguing that it, too, had been subjected to hostility based on antireligious prejudice. The city responded that the agency was not entitled to rewrite government contracts to eliminate antidiscrimination clauses.
Last year, Justice Thomas, joined by Justice Alito, appeared to urge the court to reconsider the 2015 decision that established a constitutional right to same-sex marriage, Obergefell v. Hodges, saying it stigmatized people of faith who objected to those unions.
In his majority opinion in the Obergefell decision, Justice Anthony M. Kennedy, who retired in 2018, called for “an open and searching debate” on same-sex marriage, writing that “the First Amendment ensures that religious organizations and persons are given proper protection as they seek to teach the principles that are so fulfilling and so central to their lives and faiths, and to their own deep aspirations to continue the family structure they have long revered.”