The United States Supreme Court recently granted certiorari in a case of both local and national importance. The case is Fulton v. Philadelphia, Pa., 922 F.3d (3rd Cir., April 22, 2019), cert. granted ___U.S.___, 2020 U.S. Lexis 961 (February 24, 2020). A Writ of Certiorari is a request for a review of a decision of one of the United States Circuit Courts of Appeal; basically, an appeal to the Supreme Court. The United States Supreme Court is a court that grants appeals only at its discretion, not as of right, so the mere fact that the Supreme Court granted the appeal is significant.
There are four Appellants in the case, those being the plaintiffs in the lower Court. Three of the four plaintiffs are individuals who have acted as foster parents through the fourth and most noteworthy plaintiff, Catholic Social Services. The more popular name for this case is Catholic Social Services v. Philadelphia.
Factually, the case goes back to an article that appeared in the Philadelphia Inquirer in March 2018. In that article, the Inquirer pointed out that two religious-based social service providers under contract with the City of Philadelphia's Department of Human Services were discriminating against same-sex couples. Those two organizations were Bethany Christian Services (Bethany) and Catholic Social Services (CSS). While the City has negotiated a resolution with Bethany, it failed to do so with CSS. Ultimately CSS sought a preliminary injunction in Federal Court against the City.
The United States District Court denied the injunction request, and CSS appealed to the Third Circuit Court of Appeals. The Third Circuit affirmed the District Court's decision. The U.S. Supreme Court has granted CSS's appeal from the Third Circuit decision. By way of background, CSS has been providing care to vulnerable children in Philadelphia since its formation in 1917, but the tradition of the Catholic Church's involvement with the less fortunate goes back to the yellow fever outbreak of 1797.
Up through 2018, CSS entered into a series of one-year contracts with the City. At the same time, the City maintained a Fair Practices Ordinance, which the City incorporates into all contracts. That Ordinance prohibited sexual orientation discrimination in public accommodations; however, for some time, the City overlooked that prohibition in its dealings with Bethany and CSS.
Two days after the Inquirer article, Philadelphia’s City Council passed a resolution directing the Philadelphia Commission on Human Relations to investigate the City’s Department of Human Services (DHS). They also were directed to investigate any contractor with the City that was discriminating against prospective LGBTQ foster parents. If discrimination was found, DHS needed to terminate the contracts with deliberate speed. The City did not immediately terminate CSS’s contract, but it initiated an intake freeze. This intake freeze stipulated that unless a child was part of a sibling group already in CSS care, DHS would place no new children in a CSS foster home. On June 30, 2018, the City did not renew CSS’s one-year contract, and CSS was no longer provided with either referrals or foster care reimbursements. CSS, however, was permitted to continue to provide Philadelphia with group homes and in-home services for families involved with DHS in Philadelphia.
In the case, CSS asserts that it is mandated by Pennsylvania law to assess the suitability of prospective foster parents. This includes examining “existing family relationships, attitudes and expectations regarding the applicant’s children and parent/child relationship, especially as they might affect a foster child.” 23 Pa. C.S.A. §6344(d)(2)(iv); 55 Pa. Code §3700.64(b)(1).
Based on that language, CSS refused to certify not only unmarried same-sex couples but also heterosexual unmarried couples. Concerning married same-sex couples, CSS cited the teachings of the Catholic Church that marriage can only happen between a man and a woman. According to CSS, married same-sex couples fell into the same category of all unmarried couples and were not approved as such.
CSS’s legal argument is that in terminating and not renewing its foster care contract with the City, the City is violating the Free Exercise and Establishment Clauses of the First Amendment. In other words, CSS argues that part of its function is to provide services to vulnerable children in Philadelphia. These services include foster care placements. The Commonwealth of Pennsylvania requires CSS to assess potential foster parents based on moral and parental attitude criteria. CSS, a religious institution, does these based on the religious teachings of the Catholic Church. The Catholic Church opposes two people living together outside of a marital relationship, be they a heterosexual or a same-sex couple. In discontinuing its relationship with CSS, the City of Philadelphia is forcing CSS to choose between contradicting its religious teachings or abandoning the core function of providing foster care services for vulnerable children. By making CSS chose, the City is, therefore, violating CSS’s First Amendment rights to practice its religion. On appeal, CSS presents three questions to the Supreme Court:
- Whether Free Exercise plaintiffs can only succeed by proving a particular type of discrimination claim, this would be that the government would allow the same conduct by someone who held different religious views – as two circuits have held, or whether courts must consider other evidence that a law is not neutral and generally applicable, as six circuit courts have held?
- Whether Employment Division v. Smith, should be revisited?
- Whether a government violates the First Amendment by conditioning a religious agency’s ability to participate in the foster care system on taking actions and making statements that directly contradict the agency’s religious beliefs?
CSS’s first and third issues are somewhat self-explanatory. The second, the one based on Employment Division v. Smith, 494 U.S. 872 (1990); and its more famous related cases, Masterpiece Bakeshop Ltd v. Colorado Civil Rights Commission, ___ U.S.___, 138 S. Ct. 1719 (2018); and Church of the Lukumi Babalu Aye, Inc. v. City of Hialeah, 508 U.S. 520 (1993), deserves more explanation. Masterpiece Bakeshop is a case involving a bakery in Colorado that refused to make a cake for a same-sex wedding and then cited and fined by the Colorado Civil Rights Commission. The Bakery ultimately prevailed. Lukumi involves a church of the Caribbean Santeria religion, which uses animal sacrifice in certain rituals. The City of Hialeah, Florida, passed an ordinance prohibiting animal sacrifice specifically aimed at the church. The church ultimately prevailed as well.
The decision to be reviewed by the Supreme Court is that the Third Circuit sided with the City in denying CSS's request for an injunction. The Court's rationale behind the injunction is that providing foster care services is not an intrinsically religious activity. While CSS's religious beliefs are certainly legitimately held, the First Amendment does not "relieve an individual of the obligation to comply with a 'valid and natural law of general applicability on the ground that the law proscribes conduct that his religion proscribes'…" Employment Division v. Smith, 494 US 872, 879 (1990).
In simple terms, religious beliefs cannot justify discrimination. The Third Circuit also raises the point that while the original contract expired, CSS is now asking that the City enter into a foster care contract with CSS on CSS's terms. That is certainly a high bar to reach either legally or logically.
Which side will prevail? Who knows? While the Supreme Court has been trending toward the more conservative in recent years if the issue comes down to religious freedom, which is a subset of individual rights, doesn't the City of Philadelphia have the individual right to contract with whomever it so chooses?