CIVIL RIGHTS
SCOTUS Big or Narrow on Philly Catholic Services?
Questions suggest aim to fi nd for foster care agency without new exemption precedent
BY ARTHUR S. LEONARD
The morning after Election
Day, the Supreme
Court conducted a telephonic
hearing in
Fulton v. City of Philadelphia,
presenting an opportunity for the
reconstituted nine-member high
court to rule in a very important
LGBTQ civil rights case.
Fulton presents the critical
question of whether Catholic Social
Services (CSS) can claim a religious
exemption from complying
with the LGBTQ nondiscrimination
requirements Philadelphia imposes
on foster care agencies with
which the city contracts to carry
out the screening of prospective
parents.
Review of the arguments made
on November 4, however, suggests
the ways by which the high
court could avoid ruling on the
hotly disputed clash between antidiscrimination
rules and free exercise
of religion. Questions from
the justices signaled an interest by
many of them — not just the three
remaining Democratic appointees
—in avoiding any change in the
underlying precedent dating back
30 years that allows religiouslyneutral
laws of general application
to be enforced even though they
may incidentally burden free exercise
of religion.
Newspaper publicity about a religiously
based foster care agency,
Bethany, turning away a same-sex
couple led the city to investigate
the policies of all the foster care
operations with which it contracted
and to issue ultimatums to the
two out of compliance — Bethany
and CSS — that they risked losing
their contracts. Bethany backed
down, but CSS chose to fi le suit in
federal court as the city refused to
renew its contract.
CSS argued that Philadelphia’s
action violated its free exercise of
religion and freedom of speech.
The agency maintained that it had
never been approached by prospective
same-sex foster parents, and
that if it were it would refer them
to one of the 30 other agencies in
Neal Katyal, a former acting solicitor, is representing the city of Philadelphia in its enforcement of its
nondiscrimination policies regarding foster care contractors.
Philadelphia, mostly secular, that
would be happy to evaluate them.
In effect, CSS argued, no same-sex
couple would be deprived of the opportunity
to become foster parents
because of its policy.
Both the federal district court in
Philadelphia and a Third Circuit
Court of Appeals three-judge panel
ruled against CSS, fi nding that
the city has a right to require it
to comply with its nondiscrimination
policy if it wanted to continue
performing what is a governmental
function. When the Supreme
Court agreed to review the case, it
was fl ooded with amicus briefs arguing
both sides of the issue.
Among the questions that CSS
asked the court to decide was
whether the 1990 Employment Division
of Oregon v. Smith precedent
should be “reconsidered.” Including
this question may be what snagged
the interest of at least four justices
to review the case, since each of
them — Clarence Thomas, Samuel
Alito, Neil Gorsuch, and Brett Kavanaugh
REUTERS/ GARY CAMERON
— have indicated an interest
in reconsidering that case.
In his partial dissent in the 2018
Masterpiece Cakeshop case involving
the Colorado baker who refused
to create a wedding cake for a gay
couple, Gorsuch had called for reconsideration,
calling Employment
Division “controversial.”
Ironically, the author of that
decision was conservative Justice
Antonin Scalia, and at the time the
court’s liberal members were the
dissenters. Scalia took the position
that allowing people to refuse to
comply with general laws based on
their religious beliefs was a recipe
for anarchy. It is one thing to challenge
the constitutionality of a law
that specifi cally targets a religious
practice, Scalia concluded, but
quite another to say that an individual
or institution can claim a
religious objection to a general law
that does not single out any religious
practice and is not motivated
by anti-religious animus. The 1990
ruling replaced prior precedents
holding that a law substantially
burdening a religious practice
was subject to “strict scrutiny” —
meaning it could not be enforced
against a religious observer unless
the government had a compelling
interest achievable only through
enforcing it.
Lori Halstead Windham, a lawyer
for the Becket Fund for Religious
Liberty, a Catholic litigation
group, argued that CSS should win
regardless of whether Employment
Division v. Smith was overruled,
because the Philadelphia law at issue
was not a law of “general applicability”
since it allows foster
care agencies to seek exemptions
from complying with nondiscrimination
requirements. For example,
the agencies can take account of
religion or race or disability when
matching potential foster parents
with children in particular cases,
she pointed out. This, she contended,
sharply undercut the argument
of neutrality and general
application, making it appropriate
for the court to subject the law to a
compelling interest test.
Windham also argued that city
had no compelling reason to require
CSS to evaluate same-sex
couples with so many other agencies
available to do so.
Excluding CSS from the foster
care business in Philadelphia, she
contended, was harmful to children
in that city by reducing the
number of placements that would
take place, noting that at any given
time the city has custody of several
hundred children needing placements.
Windham attacked the law as
an unconstitutional regulation of a
religious institution, arguing further
that requiring CSS to certify
same-sex couples as qualifi ed violated
its freedom of speech by compelling
it to state approval of samesex
couples and their marriages.
Finally, she pointed out that
Employment Division v. Smith had
proved a diffi cult precedent to apply
consistent with the high court’s
expanding view of free exercise of
➤ CATHOLIC SERVICES, continued on p.17
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