Catholic Agency Religious Opt-Out Bid Goes to SCOTUS
Philadelphia foster care agency denied city contracts makes First Amendment claims
BY ARTHUR S. LEONARD
The US Supreme Court will review an
appellate court ruling that rejected
First Amendment claims by the
Catholic Social Services (CSS) agency
in Philadelphia that lost its foster care services
contract with the city by refusing to work
with same-sex couples. Last year, a unanimous
three-judge panel of the Third Circuit Court of
Appeals, in Fulton v. City of Philadelphia, affi
rmed a ruling by District Judge Petrese B.
Tucker rejecting a request by the Catholic agency
for a preliminary injunction against the city.
Since the high court will not hear arguments
in the current term beyond April 29, this case,
accepted for review on February 24, won’t be
argued until its fall term beginning in October.
CSS, an affi liate of the Archdiocese of Philadelphia,
had contracted with the city to perform
foster care services for more than a century.
This case was sparked in March 2018 when the
Philadelphia Inquirer reported that two foster
care agencies, CSS and Bethany Christian Services,
told the newspaper they would not certify
same-sex couples to be foster parents. Among
30 agencies under contract with the city, most
of them faith-based, all the others stated they
did work with same-sex couples.
CSS argued that consistent with Catholic
doctrine it would certify only single individuals
or married couples to be foster parents and
that a same-sex couple would not be recognized
as married regardless of the law. Responding
to the Inquirer article, the City Council called
on the City Commission on Human Relations to
investigate the policies of the Philadelphia Department
of Human Services on discrimination
against LGBTQ foster parents.
City offi cials tried to negotiate a way around
this problem with CSS and Bethany, with
Bethany relenting but CSS refusing to budge.
So, the city put a freeze on referrals to CSS and
later refused to renew its contract.
Enlisting some foster parents as co-plaintiffs,
CSS fi led a lawsuit, represented by its counsel
and attorneys from the Becket Fund for Religious
Liberty.
CSS asserts that in a century of working
with the city, it has never been approached by a
same-sex couple and said it would refer such a
couple to another agency.
The CSS lawsuit made several claims, including
that the city’s anti-discrimination ordinance,
which forbids sexual orientation discrimination,
does not apply to it because it is
not a “public accommodation.” And the agency
claimed that under the Free Exercise Clause of
the First Amendment, it has a right to deny services
ACLU.ORG
The ACLU’s Leslie Cooper joined Philadelphia’s chief deputy solicitor
in arguing in defense of the city’s policy on foster care services
nondiscrimination.
to same-sex couples on religious grounds
and that it was being targeted for “selective
enforcement” because of its Catholic religious
views. Finally, CSS claimed that requiring it
to certify same-sex couples as qualifi ed foster
parents is government-compelled speech, also
prohibited by the First Amendment.
The American Civil Liberties Union represents
Support Center for Child Advocates and
Philadelphia Family Pride, which were granted
intervener status in the case as co-defendants
with the city. ACLU attorney Leslie Cooper participated
in the hearing before the Third Circuit
together with Jane Istvan, the city’s chief
deputy solicitor.
Judge Tucker rejected CSS’s demand for preliminary
relief, fi nding the agency was unlikely
to win the case and that the city’s strong interest
in enforcing its anti-discrimination policy
would likely prevail. The Third Circuit panel —
which included two judges appointed by President
Bill Clinton and one by Ronald Reagan —
found that CSS’ First Amendment arguments
were without merit, relying heavily on the Supreme
Court’s 1990 decision in Employment
Division of Oregon v. Smith.
In the Smith case, the Supreme Court dealt
with a claim by two men denied unemployment
benefi ts after their employer fi red them for
fl unking a drug test. The employees said that
their positive tests resulted from using peyote
during a Native American religious ceremony
and argued that the government denying them
unemployment benefi ts violated their right to
free exercise of religion.
Writing for the Court, Justice Antonin Scalia,
a devout Catholic, rejected the employees’
argument in an opinion that marked a radical
FAMILIES
change in First Amendment law. He held that
individuals may not assert a free exercise claim
against a “neutral state law of general application.”
If a law does not target religion and is applied
generally, the state does not have a burden
to justify it against an individual’s free exercise
of religion claim. Scalia argued that letting people
claim exemptions from complying with generally
applicable statutes would substantially
undermine the rule of law.
Smith has remained a controversial decision,
and several Supreme Court justices — interestingly,
those largely aligned with Scalia’s conservative
thinking — have suggested that the court
should reconsider it, something CSS asked it
to do. The court’s grant of review includes that
question and reconsidering that principle could
create a substantial religious exemption particularly
harmful to the LGBTQ community in
seeking protection against discrimination.
The foster care situation in Philadelphia illustrates
this point starkly. Though all the religiously
affi liated foster care agencies there, except
for CSS, agreed they would serve same-sex
couples, it’s unclear how many would do so if
they believed they had a First Amendment right
to refuse.
It’s worth noting that the Third Circuit specifi
cally rejected CSS’s argument that its treatment
by the city showed “hostility to religion”
— clearly an effort to grab the lifeline that saved
baker Jack Phillips in the 2018 Masterpiece
Cakeshop v. Colorado Civil Rights Commission
case. There, the Supreme Court reiterated the
general rule from Smith but found that some
members of the Commission had made remarks
hostile to religion, denying Phillips a “neutral
forum” to consider his defense against the discrimination
charge.
The Supreme Court already has cases it is
considering in this term that could potentially
narrow or overrule Smith, so it is a bit odd
that it granted review here instead of holding
the CSS petition until after ruling in the other
matters. On the other hand, CSS alternately
argued that the Third Circuit’s decision was a
misapplication of Smith, so perhaps the court
saw a reason to treat this case differently.
The Third Circuit appeal attracted 16 amicus
briefs, largely from organizations arrayed on
each side of the religious freedom issue. Eight
states joined in an amicus brief fi led by the Texas
attorney general supporting the CSS claim,
while 17 states and the District of Columbia
joined in an amicus brief fi led by out lesbian
Massachusetts Attorney General Maura Healey,
siding with the City of Philadelphia. All the
major LGBTQ rights legal organizations joined
briefs supporting the city.
GayCityNews.com | February 27 - March 11, 2020 5
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