Yesterday, the Supreme Court unanimously held that Philadelphia violated the free exercise rights of Catholic Social Services and two foster parents when the city failed to renew CSS’s contract because the Catholic organization refused to certify same-sex couples as foster parents.
While Thursday’s headlines proclaimed the decision, Fulton v. City of Philadelphia, a victory for religious liberty, in reality it represented yet another failure by the high court to definitely end the ongoing governmental targeting of faith-based organizations.
Here’s the Backstory to the Case
Since 1798, Catholic-affiliated organizations in Philadelphia have provided care to needy and orphaned youth. Until 2018, the legacy continued, with CSS acting as a state-licensed foster care agency for the city. As a foster care agency, CSS reviewed prospective families based on their “ability to provide care, nurturing, and supervision to children,” certifying for the state families it believed qualified.
Then, when a child needed placement in a foster home, Philadelphia’s Department of Human Services would send referrals to the various private foster agencies to determine whether any certified families were available. If so, the department would then place the child in the home of what it believed “the most suitable family.”
As the Supreme Court explained in its Thursday opinion, “CSS believes that ‘marriage is a sacred bond between a man and a woman,’” and “[b]ecause 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.” CSS, however, will certify gay or lesbian individuals as single foster parents and the agency places gay and lesbian children in foster homes.
For more than 50 years, CSS held these beliefs and successfully placed countless children with foster families. Also, during this time, not one same-sex couple sought certification from CSS, but had one, CSS would have directed the couple to one of the more than 20 other agencies in the Philadelphia that certified same-sex couples.
Nonetheless, in 2018, after a newspaper ran a story quoting a spokesperson for the Archdiocese of Philadelphia saying that CSS would not certify same-sex couples as foster parents, the city took issue with CSS’s beliefs. Things came to a head when the commissioner of the Department of Human Services met with leaders at CSS. At that meeting, the commissioner proclaimed that “Things have changed since 100 years ago,” and, “It would be great if we followed the teachings of Pope Francis, the voice of the Catholic Church.”
Immediately after the meeting, the department stopped referring children to CSS, then later refused to renewal its contract with the agency. CSS and three foster parents assisted by the Catholic organization sued, alleging violations of their free speech and free exercise rights. The plaintiffs also sought an injunction to prevent Philadelphia from excluding CSS from the foster care system pending resolution of the litigation.
Banned from Helping Desperate Kids For Three Years
Both the district court and the Third Circuit Court of Appeals rejected CSS and the foster parents’ constitutional claims and denied them injunctive relief pending appeal to the Supreme Court. The Supreme Court likewise refused to put on hold Philadelphia’s decision banning CSS from participating as a foster care agency, meaning that since the inception of this litigation, CSS and the foster parents certified by that agency have been unable to assist children in the Department of Human Service’s custody.
Yesterday, the Supreme Court reversed the Third Circuit’s decision, with all nine justices agreeing that the city violated the Free Exercise Clause of the U.S. Constitution. While a win on paper, the “decision might as well be written on the dissolving paper sold in magic shops,” as Justice Samuel Alito noted in his concurrence to the court’s decision.
Chief Justice John Roberts authored the majority opinion in Fulton, of which Justice Alito, joined by Justices Neil Gorsuch and Clarence Thomas, complained—rightly so, as we will soon see.
The Supreme Court Failed to Uphold the Constitution
The majority began simply enough by quoting the Free Exercise Clause of the First Amendment, “Congress shall make no law . . . prohibiting the free exercise” of religion, before laying out the currently controlling free exercise standard established in Employment Division, Department of Human Resources of Oregon v. Smith. Under Smith, laws that “incidentally burden religion” survive constitutional scrutiny “so long as they are neutral and generally applicable.”
After noting that the “[g]overnment fails to act neutrally when it proceeds in a manner intolerant of religious beliefs or restricts practices because of their religious nature,” Justice Roberts sidestepped the question of whether Philadelphia acted intolerantly of CSS’s religious beliefs—say, by telling the Catholics at CSS that “things have changed since 100 years ago,” and “it would be great if we followed the teachings of Pope Francis, the voice of the Catholic Church”—finding instead Philadelphia’s decision banning CSS from the foster program failed the “generally applicable” prong of Smith.
Here, Justice Roberts, writing for the court, explained that “a law is not generally applicable if it invites the government to consider the particular reasons for a person’s conduct by providing a mechanism for individualized exemptions.” The majority then quoted section 3.21 of the foster care contract that the city used to justify ending its contractual relationship with CSS:
Rejection of Referral. Provider shall not reject a child or family including, but not limited to, . . . prospective foster or adoptive parents, for Services based upon . . . their . . . sexual orientation . . . unless an exception is granted by the Commissioner or the Commissioner’s designee, in his/her sole discretion.
Because Section 3.21 granted the commissioner (or his designee), the discretion to exempt an organization from the mandate of certifying same-sex couples as foster parents, the Supreme Court concluded the law was not generally applicable under Smith.
To withstand the plaintiffs’ free exercise challenge, then, Philadelphia needed to establish the rule served a compelling governmental purpose and it was narrowly tailored to achieve that interest. After analyzing Philadelphia’s purported justifications for requiring CSC to certify same-sex couples, the Supreme Court held the city could not satisfy this “strict scrutiny standard.” Accordingly, the court held the city violated CSC and the foster parents’ free exercise rights.
Allowing Government Persecution of Christians
But, as Justice Alito stressed in his dissent, there is an easy way around the court’s decision: eliminate the Section 3.21 exemption—an exemption the city never used. “If it does that, then, voilà, today’s decision will vanish—and the parties will be back where they started,” Alito explained.
And he is right. The case of Jack Phillips from Masterpiece Cakeshop proves the point. Justice Gorsuch highlighted this in his separate concurrence, which Justices Alito and Thomas also joined.
“After being forced to litigate all the way to the Supreme Court, we ruled for him on narrow grounds similar to those the majority invokes today,” Justice Gorsuch wrote. Specifically, in that case, “because certain government officials responsible for deciding Mr. Phillips’s compliance with a local public accommodations law uttered statements exhibiting hostility to his religion, the Court held, those officials failed to act ‘neutrally’ under Smith.”
However, “with Smith still on the books,” Justice Gorsuch added, “all that victory assured Mr. Phillips was a new round of litigation—with officials now presumably more careful about admitting their motives.” That is precisely what Phillips faces now, being fined and again hauled into court for refusing to craft a “gender transition cake.”
The time has long since passed for the high court to overturn Smith, and Justices Gorsuch and Alito’s concurrences, which Thomas joined, lay bare that reality. So, while yesterday’s decision was a win for CSC, it was not a victory for religious liberty.