Can religious organizations engage in public service?

In Fulton v. Philadelphia, the Supreme Court yesterday heard oral arguments in a case in which the City of Philadelphia cancelled its long-time contract with Catholic Social Services (CSS) of the Archdiocese of Philadelphia to place abused or neglected children with foster parents.  The City has similar contracts with some thirty other private agencies.

CSS will place children with married couples and single persons, including homosexual and lesbian singles persons, but not with unmarried same-sex or opposite-sex couples. As a contractor with the City, CSS had operated under those principles for more than fifty years, and, in fact, had served as a foster agency for more than 100 years.  During that period, no same-sex couple had ever filed a complaint against CSS for its refusal to certify them, and, in fact, to this day no such couple has ever asked CSS to place foster children stay at their residence.

But everything changed in 2018 when the Philadelphia Inquirer out of the blue posted an article revealing that CSS and a similar Christian agency had the religiously-based policy of not certifying same-sex couples as foster parents. Three days later, the Philadelphia City Council began an investigation of CSS and that other agency for violation of the City’s ordinance against discrimination based on sexual orientation.

As part of the investigation, Cynthia Figueroa, the City’s Commissioner of the City’s Department of Social Services met with CSS.  Describing herself as “a lifelong Catholic,” Figueroa said CSS should “follow the teachings of Pope Francis”, and according to another witness, CSS “should be listening more to Pope Francis than the Archbishop and the Archdiocese’s position.” The City decided to cease referring children to CSS and then at the regular time of contract renewal refused to renew CSS’ contract with the City.  CSS, along with two foster parents, sued claiming a violation of the Free Exercise Clause.

The Fulton case is primarily based on Justice Scalia’s famous and still-controversial 6-3 majority opinion for the Supreme Court in Employment Division v. Smith in 1990 in which the state of Oregon had prosecuted some members of an Indian tribe for using peyote in a religious ceremony of the Native American Church.  (Yes, Oregon.) In upholding the criminal convictions against a free-exercise-of-religion defense, the Court ruled that religious practices are subject to “neutral, generally applicable laws” that are enacted without any anti-religion animus.

In oral argument, counsel for the City—essentially making the Smith point that all contractors, religious and non-religious, with the City are subject to the ordinance prohibiting discrimination based on sexual orientation—argued the ordinance was not enacted with a purpose of singling out religion.  Justice Amy Coney Barrett asked whether there was a standard to decide when a law is generally applicable.  In its brief, the Trump Justice Department said that Smith need not be overturned and in Court on Wednesday argued that the City’s ordinance was not neutral with respect to religion—it was biased against—and should be subject to the strictest level of scrutiny.  Like the Department, Barrett seemed to be inclined against the necessity of overturning Smith; instead, the issue should be whether the City ordinance was in fact really neutral and not hostile to religion.

Oral arguments turned on this. CSS made the strong point that the City allows exemptions from some of the requirements for the certification of prospective foster parents.  For instance, it allows the race of both the child and the prospective foster parents to be considered. There is a similar consideration for disability. Just so, the City should allow an exemption for sincerely held religious beliefs of CSS, a placing agency.  Justices Kagan and Sotomayor maintained that exemptions were allowed at the final stage of the actual placement of individual children at a home, but the City has the authority to require almost whatever it wants at the initial stage of contracting with placing agencies.  For, CSS does not have to enter into any such contract. Kagan and Sotomayor both added the notion in the experience of the modern world is that governments may take over and/or regulate areas that “were formerly private.”

Justice Barrett, Kagan, Gorsuch, and Alito asked questions about a seemingly opposing line of cases that dealt with public actions that were specifically directed against religions. In Church of the Lukumi Babalu, decided just three years after Smith, a unanimous Court ruled against a Florida city’s ordinances that prohibited animal sacrifice in religious rituals. The ordinances, the Court held, even though written in “neutral and generally applicable language,” had the purpose of and did violate the free exercise of the Santeria religion.  The Court’s almost-as-emphatic 7-2 decision in the 2018 Masterpiece Cakeshop case was based on Lukumi.  There, the Court, focused on the “hostility” by the Colorado Civil Rights Commission “toward the sincere religious beliefs” of the baker who had refused to   bake a cake for a gay wedding. At one public hearing, one commissioner told Mr. Phillips that he could not “act on his religious beliefs ‘if he decides to do business in the state.’” At a later meeting, another commissioner said that “Freedom of religion and religion have been used to justify all kinds of discrimination throughout history, whether it be slavery, whether it be the holocaust,…”  The Court ruled for the baker.

In Fulton, the present case, all the sudden actions of the City Council against CSS were immediately prompted by the newspaper’s “expose” against CSS and the other Christian agency.  It seems that the facts—together with the gratuitous Catholic catechizing—could not be more clear.

Justices Alito, Kavanaugh, and Chief Justice Roberts wondered whether the City was flouting a key provision of to the Court’s 2015 Obergefell gay “marriage” decision.  In that case, Justice Kennedy, writing for the 5-4 decision, gave reassurances that “Finally, it must be emphasized that . . . The First Amendment ensures that religious organizations and persons are given proper protection as they seek to teach the principles that are so fulfilling and so central to their lives and faiths.”

Filing amicus briefs against Catholic Social Services were 172 Democrat members of Congress, including Catholic Speaker of the House Nancy Pelosi, while filing in support were 76 Republican members of Congress. Among the elite businesses and organizations with national influence who filed against the Catholic agency were Apple, Nike, Twitter, Airbnb, American Airlines, Levi Strauss, Macy’s, U.S. Conference of Mayors, National League of Cities, American Psychological Association, and the American Bar Association.