June 17, 2021
The U.S. Supreme Court issued a significant religious freedom decision this morning, with all the justices concluding that the city of Philadelphia violated the constitutional rights of a religious foster care agency, Catholic Social Services, when it “stopped referring children to CSS upon discovering that the agency would not certify same-sex couples to be foster parents due to its religious beliefs about marriage.”
Facts of the case
Catholic Social Services “has served the needy children of Philadelphia for over two centuries.” Currently, Philadelphia’s Department of Human Services enters contracts with private agencies. When a child needs to be removed from her or his home, the department asks the contracting agencies to provide names of available foster families that work with that agency.
If a child is placed by the department with a family that partners with the agency, the agency continues to support the family while the child is in the home. It is easy to see why these agencies would be so important to foster families, the city, and vulnerable children.
Until 2018, Philadelphia had contracted with CSS since the beginning of the contracting program. That year, though, the city determined to stop working with CSS. As the Supreme Court explains:
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. CSS does not object to certifying gay or lesbian individuals as single foster parents or to placing gay and lesbian children. No same-sex couple has ever sought certification from CSS. If one did, CSS would direct the couple to one of the more than 20 other agencies in the City, all of which currently certify same-sex couples.
The city said this belief constituted discrimination on the basis of sexual orientation under the city’s law and refused to make any exceptions that would allow CSS to continue to work with the city.
Foster parents who had partnered with CSS challenged the policy, but the trial court and court of appeals ruled in favor of the city. These courts believed that a 1990 Supreme Court decision, Employment Division v. Smith, allowed the city to cut ties with CSS. The decision had basically said that if a law or government action applies equally to religious and nonreligious conduct, it does not violate the First Amendment.
The Supreme Court decided to review the Philadelphia case, including the question of whether the Smith decision was correct, leading to today’s decision.
The bottom line is that all nine of the Supreme Court justices concluded that Philadelphia’s exclusion of CSS from foster care contracts violated the First Amendment’s free exercise clause.
Chief Justice Roberts’ opinion
The unanimous result, however, hides some pretty significant differences which may have long-term implications.
The main opinion was written by Chief Justice John Roberts and joined by Justices Stephen Breyer, Sonia Sotomayor, Elena Kagan, Brett Kavanaugh and Amy Coney Barrett.
This opinion concluded that the Philadelphia exclusion was unconstitutional but sidestepped the question of whether the Smith decision was correct, leaving that question for another day.
In other words, even under the reasoning in the Smith decision, the majority believed Philadelphia’s actions were unconstitutional because “the City has burdened the religious exercise of CSS through policies that do not meet the requirement of being neutral and generally applicable.”
The majority said government actions are not neutral if they are “intolerant of religious beliefs or restrict practices because of their religious nature” or if they prohibit “religious conduct while permitting secular conduct that undermines the government’s asserted interests in a similar way.”
Here, the main problem for the majority was that the city’s law allowed the department to exempt agencies from requirements of the law, so the policy applied to CSS was actually not generally applicable. In addition, the city’s argument that it was just applying a law that required all businesses open to the public not to discriminate on the basis of sexual orientation was ruled inapplicable, since foster parent certification is not a service “accessible to the public,” unlike other services like “staying in a hotel, eating at a restaurant, or riding a bus.”
The majority recognized that the city’s interests in maximizing foster families and preventing discrimination are important but said the “city offers no compelling reason why it has a particular interest in denying an exception to CSS while making them available to others.”
The opinion concluded: “The refusal of Philadelphia to contract with CSS for the provision of foster care services unless it agrees to certify same-sex couples as foster parents cannot survive strict scrutiny, and violates the First Amendment.”
The unanswered question
Because the main opinion was premised on the idea that the city had acted unconstitutionally even under Smith, the court did not address that decision’s validity. This is disappointing to religious freedom advocates who believe the Smith decision was wrongly decided and creates vulnerability for religious exercise.
Three concurring opinions focused on this unanswered question. Barrett agreed with the majority opinion but wrote a brief opinion joined by Breyer and Kavanaugh that argued the court was right not to address Smith because doing so might create difficulties that could be deferred until later. Barrett and Kavanaugh suggested they leaned toward the conclusion that Smith was wrongly decided, but also described themselves in the opinion as being:
skeptical about swapping Smith’s categorical antidiscrimination approach for an equally categorical strict scrutiny regime, particularly when this Court’s resolution of conflicts between generally applicable laws and other First Amendment rights—like speech and assembly—has been much more nuanced.
In other words, religious freedom advocates have some work to do before having a reasonable hope that the court will overturn Smith.
Justice Samuel Alito wrote a long concurring opinion (agreeing with the outcome but not the reasoning of the majority) joined by Justices Clarence Thomas and Neil Gorsuch that directly challenged the Smith decision. The comprehensive argument noted serious problems with the implications of Smith for religious freedom and argued that the Smith decision was inconsistent with the meaning of the free exercise clause. It concluded:
After receiving more than 2,500 pages of briefing and after more than a half-year of post-argument cogitation, the Court has emitted a wisp of a decision that leaves religious liberty in a confused and vulnerable state. Those who count on this Court to stand up for the First Amendment have every right to be disappointed—as am I.
Gorsuch wrote briefly (Alito and Thomas joined this one as well) and also chided the majority for failing to discuss Smith: “Smith committed a constitutional error. Only we can fix it. Dodging the question today guarantees it will recur tomorrow. These cases will keep coming until the Court musters the fortitude to supply an answer. Respectfully, it should have done so today.”
So, the Fulton decision was an important vindication of the religious freedom of Catholic Social Services in Philadelphia. As some of the concurring justices noted, this particular controversy may continue if the city is willing to change its policies to continue to exclude CSS. That would, of course, mean further litigation.
Today’s ruling, however, also suggests that a majority of justices are sympathetic to overturning Smith. So that issue will not go away.
A recent news story pointed out that President Joe Biden has begun his administration with a strong record for getting new federal judges confirmed. Since taking office, he has managed to secure the confirmation of eight federal judges, more than any president since Richard Nixon.
With vision, leadership and sufficient efforts on the ground, we can muster the political will to plant “the Utah way” in the hearts and minds of future generations.
So if a destructive CRT ban is at best a partial policy solution – which may ultimately prove ineffective – what are the alternative (or perhaps additional) policy options that leaders should consider?