This article is the first entry in a symposium previewing Fulton v. City of Philadelphia.

In the past five years, the Supreme Court has ruled that the Constitution guarantees a right to same-sex marriage and that federal employment discrimination laws protect LGBTQ employees. On Nov. 4, the justices will hear oral argument in a clash between religious freedom and laws and policies that protect LGBTQ rights. The court’s decision in Fulton v. City of Philadelphia could have a significant impact for state and local governments that use private companies to provide services to their residents – if the justices decide to reach the broader issues presented by the case.

The question of how to balance sincere religious beliefs against the government’s interest in protecting LGBTQ rights is one with which the justices have struggled. In 2018, the justices confronted this question in the case of a Colorado baker who refused to create a custom cake for a same-sex couple because he believed that doing so would violate his religious beliefs. The justices ultimately issued a narrow ruling for the baker, holding that the state administrative agency that had ruled against him had treated him unfairly by being too hostile to his religious beliefs. The justices did not decide, however, whether requiring the baker to bake a cake for a same-sex couple would violate his right to freedom of speech under the First Amendment.

In Fulton, a similar First Amendment question returns to the Supreme Court in a lawsuit brought by Catholic Social Services, a foster-care agency associated with the Archdiocese of Philadelphia. During the 50 years that it has worked with the city to place foster children, CSS has worked with thousands of foster parents, including the named plaintiff in this case: Sharonell Fulton, who has served as a foster mother to 40 children over 25 years. For CSS, the home studies that are part of the process of certifying prospective foster parents are effectively endorsements of the family. The agency’s Catholic beliefs, it explains, preclude it from certifying both foster parents who are not married and same-sex married couples – although it is not clear whether any same-sex couple has ever asked CSS for certification.

Sharonell Fulton, named petitioner in the case (Becket Fund)

The dispute now before the Supreme Court began after city officials read a March 13, 2018, article in a Philadelphia newspaper about a complaint against a different foster-care agency. The article also indicated that the Archdiocese of Philadelphia and CSS follow the Catholic Church’s teachings on marriage, which prohibits them from providing certifications for same-sex couples. Two days later, the city council passed a resolution that instructed the Department of Human Services, which is tasked with finding a home for foster children, to change its contracting practices. The resolution condemned “discrimination that occurs under the guise of religious freedom.” DHS also initiated an investigation into whether religious foster-care agencies had discriminated against same-sex couples. By March 16, DHS had blocked all referrals to CSS.

CSS, Fulton and another foster parent, Toni Lynn Simms-Busch, filed a lawsuit in May 2018, asking a federal court to require DHS to resume referrals to CSS. They argued that the city’s actions violated several different provisions of the First Amendment: the free exercise clause, which protects religious belief and expression; the establishment clause, which (among other things) bars the government from favoring non-religion over religion; and the free speech clause. The district court denied CSS’s request, concluding that the city’s policy passed muster under the court’s 1990 decision in Employment Division v. Smith, which held that government actions do not violate the Constitution’s free exercise clause as long as they are neutral and apply to everyone. The U.S. Court of Appeals for the 3rd Circuit affirmed. It found no sign that DHS had discriminated against CSS because of its religious beliefs. CSS then went to the Supreme Court, and the justices agreed to weigh in.

Arguments of the challengers

In its brief on the merits, CSS offered a variety of reasons why the court should reverse the 3rd Circuit’s ruling in favor of the city. As an initial matter, CSS argued that the city’s actions in cutting off referrals to the agency did not flow from a neutral, generally applicable law at all. Instead, CSS suggested, when the city and DHS learned through the March 2018 newspaper article that CSS would not certify same-sex couples for religious reasons, they wanted to penalize CSS and “reverse-engineered policies to justify” that outcome after the fact.

CSS next argued that the city’s refusal to make referrals to the agency because of CSS’s religious beliefs is precisely the kind of situation to which the free exercise clause applies. And in any event, CSS continued, the court’s decision in Smith does not shield laws or policies that are “directed at” a particular religion and therefore not neutral, nor does it apply to laws that use individual exemptions and therefore are not generally applicable. Both of those exceptions, CSS asserted, apply to this situation. Philadelphia’s policy is aimed squarely at prohibiting CSS’s exercise of its religious beliefs, rather than having only an “incidental effect” on it. The city was also openly hostile toward CSS’s religious beliefs, accusing the agency of discrimination and telling the agency that it was “not 100 years ago.”

The policy is also not generally applicable, CSS added, because the city has two different systems to provide exemptions – a committee that can grant exemptions or waivers from city policies, as well as the possibility that DHS can grant exemptions in an individual case. Moreover, CSS noted, the city actually requires foster agencies to take marital status, disability and family status into account, and it allows agencies to make referrals to other agencies for secular reasons – for example, for Native American children and parents – but not for religious reasons.

What the city’s actions boil down to, CSS wrote, is an effort to “compel a private organization’s speech” by requiring CSS to do a home study that certifies same-sex couples as foster parents. That conduct is particularly troubling, CSS suggested, because the Supreme Court’s 2015 ruling in Obergefell v. Hodges, recognizing a right to same-sex marriage, indicated that religious groups could still “advocate with utmost, sincere conviction that, by divine precepts, same-sex marriage should not be condoned.”

Because the city’s actions are not protected by Smith, CSS told the justices, they are subject to “strict scrutiny” – the most stringent constitutional test. The city fails that test, CSS argued. It does not have a compelling interest in preventing discrimination, CSS contended, as demonstrated by the fact that the city gives exemptions from the nondiscrimination policy to others. Even if it did have a strong interest in enforcing its nondiscrimination policy against CSS, the agency continued, the city’s actions are not narrowly tailored to achieve that interest because the effects of that enforcement go beyond CSS, barring children from being placed with foster parents even when CSS had already certified those homes. And the city has also not shown that it could not work around the problem by allowing CSS to refer same-sex couples to one of the 29 other agencies in the city’s foster-care system, CSS observed.

CSS urged the court to scrap its ruling in Smith and replace it “with a free exercise standard that reflects the text, history, and tradition of the clause.” Smith, CSS contended, rested on a series of predictions that have been proven to be wrong. For example, CSS suggested, granting exemptions from laws will not lead to “anarchy”: Experience with the Religious Freedom Restoration Act and the Religious Land Use and Institutionalized Persons Act, federal laws enacted in response to Smith, has shown that courts can determine when laws should supersede religious rights. Smith was also wrong in its interpretation of the free exercise clause, CSS continued, which protects “an affirmative right for believers to practice their religion, not just hold particular religious beliefs.” It’s noteworthy, CSS added, that the First Amendment does not contain any limitations on the free exercise of religion – unlike, say, the Fourth Amendment, which prohibits searches that are “unreasonable.”

The federal government filed a “friend of the court” brief supporting CSS. It told the justices that they don’t need to decide whether to overrule Smith because the city’s policy was neither neutral nor generally applicable. What’s more, the government added, the city’s conduct demonstrated “unconstitutional hostility toward Catholic Social Services’ religious beliefs” — just as in the case of the Colorado baker.

Arguments of the city

In its brief on the merits, the city acknowledged that CSS is a “point of light in the City’s foster-care system” that has worked “with distinction,” and it noted that the city still contracts with CSS to provide other services to foster children. But it framed the question before the court very differently. It told the justices that because the lawsuit had originally focused on the constitutionality of the city’s decision to freeze referrals under the 2018 contract, which has now expired, the only real question left in the case is whether the nondiscrimination requirement is unconstitutional. And the answer is no. CSS does not have a constitutional right to have the city “offer it a contract that omits the same non-discrimination requirement every other” foster-care agency “must follow when performing services for the City.”

Two Philadelphia-area nonprofit groups entered the case to defend the city’s policy: the Support Center for Child Advocates, which provides legal assistance and advocacy for abused and neglected children in the Philadelphia area, and Philadelphia Family Pride, a group for LGBTQ-led families in the area. They told the justices that CSS has a choice. If it doesn’t like the terms of the contract that the city is offering, it can decline to enter into the contract at all.

The city underscored that, by certifying foster-care parents, CSS is not endorsing same-sex relationships. It added that it has more latitude in regulating CSS, as one of its contractors, than it does in regulating private citizens – including when it comes to the free exercise clause. To be sure, the city noted, a government cannot single out contractors because of their religious beliefs or establish rules because of a hostility to religion. But in this case, the city emphasized, the nondiscrimination requirement is “generally applicable and neutral.” First, it explained, every contract with a foster-care agency contains the same nondiscrimination provision, which applies to everyone the same way. The city stressed that it does not allow any agencies – either religious or nonreligious – to discriminate by denying service and referring would-be foster parents to other agencies, although agencies can provide information about their services that may lead prospective foster parents to go elsewhere.

The nondiscrimination requirement is also neutral, the city continued, because nothing in it suggests that it makes distinctions based on religion. As the lower courts found, the city told the justices, there was no evidence that CSS was targeted “because of” its religious beliefs. CSS cannot rely on statements by the mayor or the city council to make its case, the city pointed out, because DHS’s actions are the ones at issue. Indeed, the city noted, further evidence that it does not distinguish based on religion can be seen in the fact that DHS has offered CSS “the same” contract that it offers to other agencies, because it would like to keep CSS as one of its contractors and has paid CSS “millions of dollars” for other services that the agency provides.

This is in any event not the case to overrule Smith, the city concluded. Even before the Supreme Court’s ruling in Smith, the city emphasized, there was no individual right to challenge the government’s management of its own affairs. The doctrine of stare decisis – the principle that courts will not normally overturn their own cases – also counsels against overruling Smith, the city argued. Stare decisis requires a “special justification” to reverse a past decision, and no such justification exists here. By contrast, the city contended, overruling Smith “would create a doctrinal mess,” and CSS has provided “little guidance on how courts would clean it up.”

Arguments of third parties

“Friend of the court” briefs on both sides painted vivid pictures of the potential consequences of the court’s decision. Two briefs supporting CSS focused on the significance of the case for religious minority groups. The Jewish Coalition for Religious Liberty told the justices that the dispute “represents an opportunity for the Court to restore robust Free Exercise protection to religious minorities,” who are disproportionately affected by generally applicable laws. For example, the group suggested, a law that prohibited circumcision for everyone might pass muster under Smith even though it would “severely burden” one of “Judaism’s most sacred practices.” A second brief — from a diverse array of groups including a Muslim organization, a Sikh organization, a Christian community from the Anabaptist tradition, and a society representing a faith within Hinduism — explained that although the federal Religious Freedom Restoration Act and comparable state laws have been helpful to protect religious minorities, these minorities “find themselves in a difficult situation” elsewhere. “Avoiding certain consequences of democratic government is the very point of having a First Amendment,” they emphasized.

Another brief supporting CSS, filed by Nebraska, Arizona and Ohio, stressed that states rely heavily on faith-based foster-care agencies to help them recruit foster parents and place children. In Nebraska and Alabama, for example, the states wrote, roughly 30% of the foster-care agencies are religious.

A group of scholars who study the rights of children filed a brief supporting the city. They contended that providing an exemption for religious foster-care agencies that refuse to certify same-sex couples would be harmful for foster children by limiting the pool of potential foster parents. A similar argument came from a brief filed by social workers and nonprofits that deal with child welfare, adoption and foster care, who told the justices that LGBTQ youth are both disproportionately represented in the foster-care system and more at risk for negative experiences in that system. Studies have suggested, the groups said, that the best way to prevent these negative experiences is by placing LGBTQ youth with welcoming foster families, which can be hard to find. “Eliminating prospective foster parents on the basis of their sexual orientation may remove the very parents who could most benefit LGBTQ children in foster care,” the groups concluded.

A group of local governments and mayors also filed a brief supporting the city. They described how local governments enter into contracts with private parties to provide a variety of services to their residents – everything from public transportation to after-school programs. Nondiscrimination requirements like the one in this case exist not to “force conformity of belief,” the governments explained, but “to ensure that all our residents receive publicly funded services with dignity and respect and without experiencing exclusion.” Allowing contractors like CSS to claim an exemption from nondiscrimination requirements would, they suggested, make it harder to deliver services, often to groups like LGBTQ people and the formerly incarcerated who most need it. Even more broadly, they continued, contractors could raise religious objections in other contexts – for example, to argue that male and female passengers on a bus should have to sit separately.

After the Oct. 26 confirmation of Justice Amy Coney Barrett to fill the vacancy created by the death of Justice Ruth Bader Ginsburg, this case will be one of the first cases argued with a new, solidly conservative majority on the court. Two justices have recently reiterated their criticism of the court’s 2015 ruling in Obergefell. In a statement regarding the denial of review in the case of Kim Davis, the Kentucky clerk who refused to issue marriage licenses after the decision in Obergefell, Justices Clarence Thomas and Samuel Alito wrote that the ruling “will continue to have ‘ruinous consequences for religious liberty.’” However, if there are not five votes for the kind of sweeping ruling that CSS seeks, the justices could once again sidestep the question, as it did in the case of the Colorado baker, by issuing a narrower ruling – for example, by holding that Smith does not apply because the city’s nondiscrimination policy is not neutral or generally applicable.

This post was originally published at Howe on the Court.

Posted in Fulton v. City of Philadelphia, Pennsylvania, Featured, Symposium before oral argument in Fulton v. City of Philadelphia

Recommended Citation: Amy Howe, Case preview: Court will tackle dispute involving religious foster-care agency, LGBTQ rights, SCOTUSblog (Oct. 28, 2020, 4:00 PM), https://www.scotusblog.com/2020/10/case-preview-court-will-tackle-dispute-involving-religious-foster-care-agency-lgbtq-rights/