Religious Exemptions to Anti-Discrimination Law: Children's Rights in the Constitutional Calculus

Increasingly, religious actors in the public sphere--whether in the provision of goods and services (Masterpiece Cakeshop) or in government contracting (Fulton)--are simply invoking a person's sexual orientation as inconsistent with their religious tenets to benefit from a legal doctrine that shields them from the requirement that they offer an underlying rationale for LGBTQ discrimination. Over the past decade, we have filed amicus briefs in United States Supreme Court cases advancing children's constitutional rights, including briefs providing a check on these religious-based arguments when they adversely impact children's rights in the familial and child regulation contexts and equal access to the public resources. In our brief in Fulton v. Philadelphia, we highlighted how the categorical exemption courts have carved out for religious actors performing government duties gives legal effect to private biases at the expense of children and in contravention of their status as constitutional rights bearers. Our most recent amicus brief in St. Mary Catholic Parish v. Roy extends this argument into the education sphere which, like the foster care system at issue in Fulton, is a uniquely child-centered context and one in which children's constitutional rights have been historically acknowledged under state and federal law.