RELIGION
Discriminatory Catholic Agency Seeks SCOTUS Review
Philadelphia foster care service aruges it’s free to bar same-sex couples
BY ARTHUR S. LEONARD
A Catholic foster care
agency has asked the
US Supreme Court to
overrule a federal appeals
court decision rejecting its
claim that it enjoys a religious
freedom right to maintain a contract
with the city of Philadelphia
while refusing to provide services
to married same-sex couples. The
July 22 petition, fi led by Catholic
Social Services (CSS), which is operated
by the Archdiocese of Philadelphia,
seeks to overturn an April
22 ruling from the Third Circuit
Court of Appeals.
CSS had sued the city when it
was informed it would be disqualifi
ed from certifying eligible foster
parents if it did not drop its discriminatory
policy. The agency
claims it is not covered by Philadelphia’s
ordinance banning discrimination
in public accommodations
and that its religiously-based
policy is protected by the First
Amendment.
Catholic foster care and adoption
services in several other cities
have closed down rather than
agree to drop their policies denying
services to same-sex couples. CSS
argues that it will suffer the same
fate, since its services can only legally
be provided under a contract
with the city.
Citing layoffs that have already
taken place at CSS due to the city’s
position, the agency sought an injunction
against Philadelphia enforcing
its policy as the case played
out, but it was turned down at
every stage. When the Third Circuit
denied a preliminary injunction
last summer, CSS applied to
the Supreme Court for injunctive
relief, but that too was denied on
August 30. The high court noted,
however, that Justices Clarence
Thomas, Samuel Alito, and Neil
Gorsuch would have granted it.
Now that Brett Kavanaugh has
joined the court, CSS may have the
four justices it needs to get its appeal
heard.
In its petition to the high court,
CSS claims it has never been approached
by a same-sex couple
seeking to be certifi ed as prospective
foster parents and that there
are 30 other agencies in Philadelphia
contracted to provide the
same services. The agency argues
that referring applicants to other
agencies is a common practice, not
a sign of discrimination.
The agency is making three
distinct arguments. One is that it
was singled out due to government
hostility to its religiously-motivated
policy with a requirement that
foster agencies affi rmatively agree
to provide services to same-sex
couples. Another is that the Third
Circuit misapplied a 1990 Supreme
Court precedent to fi nd that
the city’s policy was a “neutral law
of general application” and so not
subject to constitutional challenge.
Finally, CSS argues, the 1990
precedent, Employment Division v.
Smith, has given rise to confusion
and disagreement among the lower
federal courts and should be reconsidered
by the Supreme Court.
Opponents of same-sex marriage
have been urging the court
to reconsider Smith, which was a
controversial decision from the outset.
In Smith, the Supreme Court
rejected a challenge to the Oregon
Unemployment System refusing
benefi ts to a worker fi red for fl unking
a drug test. The employee, a Native
American, had used peyote in
a religious ceremony and claimed
denying him unemployment benefi
ts violated his First Amendment
rights. The court, in an opinion by
Justice Antonin Scalia, held that
state laws that are neutral regarding
religion and of general application
can be enforced even if they
incidentally burden somebody’s
religious practices.
Last year, Justice Neil Gorsuch
— in a concurring opinion in the
case where Masterpiece Cakeshop
baker Jack Phillips prevailed in
his assertion that Colorado offi -
cials showed hostility toward his
religious beliefs when they ruled
he violated nondiscrimination law
in refusing service to a gay couple
(though the court did not rule on
whether he had a religious exemption
CSSPHILADELPHIA.ORG
Catholic Social Services of Philadelphia hopes to
takes its case arguing it can discriminate against
same-sex couples to the US Supreme Court.
from that nondiscrimination
law) — suggested that Smith be
reconsidered. Since the Masterpiece
ruling in June 2018, other
petitions, including one from
Sweetcakes by Melissa, an Oregon
bakery, have asked the court to reconsider
Smith.
So far, the high court has not
committed to undertaking such
reconsideration. In the Sweetcakes
case, it vacated an Oregon appellate
ruling against the recalcitrant
baker and sent the case back to
the state court for “further consideration”
in light of the Masterpiece
Cakeshop ruling, but said nothing
about reopening the Smith precedent.
The city of Philadelphia acted
against CSS in the wake of a report
in the Philadelphia Inquirer that it
would not serve same-sex couples.
After the City Council called for an
investigation, the mayor directed
offi cials to conduct a probe, in
which religious foster care agencies
were contacted about their policies.
Only CSS insisted it would not provide
services to same-sex couples,
but would refer them to other agencies.
When the city decided to end
its contract with CSS, the agency
and several women whom it had
certifi ed as qualifi ed foster parents
sued.
The agency’s petition to the high
court is artfully fashioned to persuade
it that the Third Circuit’s
approach to the issue — while consistent
with cases from the West
Coast-based Ninth Circuit — is out
of sync with the approach of several
other circuit courts, and lower
federal courts, as well, in deciding
when a government policy is shielded
from a First Amendment challenge
under the 1990 Smith precedent.
Persuading the Supreme
Court to take a case crucially depends
on showing that there is an
urgent need to resolve lower court
confl icts so that there is a unifi ed
approach to constitutional rights
throughout the nation.
After CSS’ petition is placed on
the high court’s docket, the city of
Philadelphia has 30 days — subject
to extension — to respond. Once
all responses are in, the case will
be distributed to the justices and
placed on the agenda for a conference
in the new term that begins
October 1. It is worth noting that
petitions involving the question of
whether Title VII of the 1964 Civil
Rights Act forbids sexual orientation
or gender identity discrimination
fi rst went to the high court
last summer, but extensions on
responses delayed consideration
through much of the past term
and they are only being heard in
the new term, on October 8.
CSS and the foster mothers are
represented by attorneys from the
Becket Fund for Religious Liberty,
a conservative religiously-oriented
litigation group that advocates for
a broad interpretation of free exercise
rights, and Philadelphia attorneys
Nicholas M. Centrella and
Conrad O’Brien. The headline of
their press release announcing the
Supreme Court petition framed the
case this way: “Philly foster mothers
ask Supreme Court to protect
foster kids.”
The city is represented by the
Philadelphia Law Department. The
American Civil Liberties Union is
representing Support Center for
Child Advocates and Philadelphia
Family Pride, who were granted intervenor
status and named as defendants
in the CSS petition.
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