➤ FULTON, from p.4
fi cient” to withstand such scrutiny,
the court sent the case back to the
lower courts “for further proceedings
consistent with this opinion,”
a rather unhelpful formulation according
to Justice Gorsuch’s concurring
opinion, contending that
this dispute could remain in litigation
for years.
The case arose in 2018 when a
Philadelphia newspaper reported
that only two of the more than two
dozen foster care agencies contracting
with the city to evaluate
potential foster parents were refusing
to deal with married same-sex
couples: CSS, and one Protestant
agency that eventually capitulated
to the city’s non-discrimination
demand. CSS stood fi rm on its religious
objection to same-sex marriages,
and the city responded by
stopping referrals of children needing
foster placement to CSS and allowing
its annual contract to lapse
when CSS refused to sign a new
contract with the anti-discrimination
language. CSS is still involved
in foster care activities using charitable
funds, but it cannot evaluate
and certify prospective foster parents
without the city contract and
it has lost vital revenue from the
city as a result.
Some of CSS’s foster parents
and the agency itself collaborated
on this lawsuit, seeking a preliminary
injunction from the US District
Court in Philadelphia, which
the judge denied. The denial was
upheld by the Third Circuit Court
of Appeals. Those courts found
that CSS was a public accommodation
subject to the requirement
under Philadelphia’s ordinance not
to discriminate because of sexual
orientation. The courts concluded
that this was a religiously neutral
rule of general application, so under
Employment Division v. Smith,
CSS was unlikely to prevail on its
claim that the city was violating its
First Amendment rights.
The lower courts also rejected
CSS’s argument that requiring it
to certify same-sex married couples
was a form of unconstitutional
compelled speech. The courts
found that because the speech
involved applying standards prescribed
by a state statute, it was
government speech rather than
CSS’s own speech. The Supreme
Court did not address this argument
on the appeal, as it resolved
the case in favor of CSS on its religious
freedom argument.
CSS petitioned the Supreme
Court for review, asking that it decide
the First Amendment issues
and that it overrule Employment
Division v. Smith, a decision that
overturned more than 40 years of
First Amendment precedents and
was so controversial when it was
issued that Congress twice voted
to overrule it, resulting in the Religious
Freedom Restoration Act and
many similar state laws seeking to
restrict government actions that
burden religious practices.
Chief Justice Roberts produced
the narrowest rationale possible
for ruling in favor of CSS, essentially
fi nding, contrary to the lower
courts, that CSS is not a public
accommodation within the meaning
of Philadelphia’s ordinance,
and that because the contract
used by the city to deal with foster
care agencies reserved to the
Commissioner the sole discretion
to make exceptions to its nondiscrimination
requirement, that
requirement could not be seen as
a law of “general application.” Under
Employment Division, people
and institutions do not have a free
exercise right to refuse to comply
with religiously-neutral laws of
general application. Given Roberts’
conclusion about the “exception”
provision, he found that Employment
Division v. Smith just
did not apply to this case.
In the absence of the Employment
Division precedent, the court
recurred to traditional free exercise
tests, asking whether the city had a
compelling interest to refuse to make
an exception to its anti-discrimination
rule so that CSS could continue
the Church’s centuries-old tradition
of providing services to orphans.
That there are numerous other foster
care agencies in Philadelphia
that welcome same-sex couples as
potential foster parents, and that in
the past same-sex married couples
have not even applied to CSS for
services, undoubtedly factored in to
the ruling. It certainly played a key
role in the oral argument before the
court last November.
By avoiding the most diffi cult
constitutional and statutory questions,
Roberts was able to get fi ve
co-signers, including all the “liberals”
and two Trump appointees,
Kavanaugh and Barrett. But this
result caused consternation to
those justices who were chomping
at the bit to overrule Employment
Division, led by Justice Alito, who
issued a 77-page concurring opinion
going on at tiresome length
about how terrible that decision
was and why it was imperative
that the court discard it. Justice
Gorsuch agreed, but in a much
shorter concurring opinion that
focused on picking apart Roberts’
evasion strategy in a most
entertaining fashion. Justice Barrett,
in her own brief concurrence
joined by Justice Kavanaugh and,
in part, by Justice Breyer, agreed
that Employment Division is troublesome,
but also agreed, as indicated
by her signing the Chief
Justice’s opinion, that it did not
have to be reversed to reach the
correct result in this case. Either
way, with or without Employment
Division standing as a precedent,
strict scrutiny applied to this
case, and even the “liberal” Justices
agreed that Philadelphia’s
action in this case could not survive
strict scrutiny.
However, although the reality is
taxpayers in Philadelphia may end
up paying a Catholic agency to provide
a service from which married
same-sex couples are excluded, the
victory for “religious freedom” is
mixed. Employment Division still
stands as a precedent. And the City
of Philadelphia may escape this
holding by revising its foster care
contracts to remove the discretion of
the commissioner to waive the antidiscrimination
provisions. But that
is easier said than done, because
there is an important waiver that
allows foster care agencies to take
account of race and other characteristics
in making placement decisions
for foster children.
Justice Gorsuch’s concurrence
emphasized that the court’s failure
to confront Employment Division
has costs that “fall on the lower
courts.” “As recent cases involving
COVID-19 regulations highlight,
judges across the country continue
to struggle to understand and apply”
that decision, “even 30 years
after it was announced,” Gorsuch
wrote. He concluded: “We owe it to
the parties, to religious believers,
and to our colleagues on the lowers
courts to cure the problem this
court created.”
➤ WILTON MANORS, from p.25
pride for the LGBT community and
commemoration of our hard-won
victories for equality, our community
faced the worst of tragedies,”
Trantalis said in a subsequent
post on Facebook. “The grief of our
LGBT community — and greater
Fort Lauderdale as a whole — is
palpable. I was an eyewitness to
the horrifying events. It terrorized
me and all around me. I reported
what I saw to law enforcement and
had strong concerns about what
transpired — concerns for the
safety of my community. I feared it
could be intentional based on what
I saw from mere feet away.”
Trantalis added, “As the facts
continue to be pieced together,
a picture is emerging of an accident
in which a truck careened
out of control. As a result, one
man died, two others were injured
and the lives of two members
of Congress were at risk. My
heart breaks for all impacted by
this tragedy.”
The Stonewall Pride Parade and
Street Festival returned to the
community after organizers put
the in-person event on hold last
year due to the coronavirus pandemic.
According to the organization’s
guidelines, individuals seeking
to drive in the parade must be
at least 18 years old, show a valid
driver’s license, ID registration,
and insurance. Alcohol is not permitted
at the festival.
Stonewall Pride Parade and
Street Festival CEO Jeffrey Sterling
said the organization is still
reeling from the incident.
“We are devastated by the tragic
accident on June 19 at the start
of the Stonewall Pride Parade at
the Fort Lauderdale High School,”
Sterling said in a written statement.
“Our hearts and prayers go
out to the family of the deceased,
the other individuals involved, and
the Chorus family.”
In a statement on Facebook, the
South Florida Gay Men’s Chorus
said they are “deeply saddened” by
the fatal collision, adding that the
incident was the result of an “unfortunate
accident.”
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