Supreme Court Unanimously Sides With Catholic Foster Family Agency Against Philadelphia in First Amendment Case

What’s the story?

• The Supreme Court on Thursday unanimously ruled that the city of Philadelphia, Pennsylvania violated the First Amendment rights of a Catholic foster care service agency by attempting to require it to commit to placing children with same-sex couples.
• The case, known as Fulton v. Philadelphia, concerned the operation of Philadelphia’s foster care system which annually contracts with private foster care agencies such as Catholic Social Services (CSS) that are tasked with certifying foster families based on criteria set by the state. The foster family program is administered by a city commissioner who has the discretion to grant individual exceptions from the state’s criteria to an agency.
• As a Catholic organization, CSS holds the view that marriage is a sacred bond between a man and woman and as a matter of policy will not certify same-sex married couples as foster parents, nor will it unmarried couples of any sexual orientation. 
• No same-sex couple has ever petitioned CSS in an effort to be one of CSS’s certified foster families, and other private agencies participating in the city’s foster family certification program do certify same-sex couples.
• A 2018 news report on CSS’s stance regarding the certification of same-sex couples prompted the city of Philadelphia to inform CSS that unless it committed to certifying same-sex couples it would violate a non-discrimination clause in the agency’s contract along with a citywide ordinance. 
• CSS then filed suit to block the city’s freeze alleging violations of the Free Exercise and Free Speech Clauses of the First Amendment. The federal district court and the Third Circuit held that the city’s requirement was neutral and generally applicable under the Smith precedent and declined to grant CSS’s request.
• The Supreme Court unanimously reversed the lower courts’ rulings, holding that the city of Philadelphia violated the Free Exercise Clause of the First Amendment. Because of the Free Exercise violation, the Supreme Court didn’t consider the Free Speech violation.  

What did the justices say?

• Chief Justice John Roberts wrote the majority opinion which was joined by Justice Stephen Breyer, Justice Sonia Sotomayor, Justice Elena Kagan, Justice Brett Kavanaugh, and Justice Amy Coney Barrett. The chief justice’s opinion set aside the issue of the Smith precedent and ruled that the city of Philadelphia violated the First Amendment:  

“This case falls outside Smith because the City has burdened the religious exercise of CSS through policies that do not meet the requirement of being neutral and generally applicable...

That leaves the interest of the City in the equal treatment of prospective foster parents and foster children. We do not doubt that this interest is a weighty one, for “[o]ur society has come to the recognition that gay persons and gay couples cannot be treated as social outcasts or as inferior in dignity and worth.” (Masterpiece). On the facts of this case, however, this interest cannot justify denying CSS an exception for its religious exercise. The creation of a system of exceptions under the contract undermines the City’s contention that its non-discrimination policies can brook no departures. The City offers no compelling reason why it has a particular interest in denying an exception to CSS while making them available to others.

As Philadelphia acknowledges, CSS has “long been a point of light in the City’s foster-care system.” CSS seeks only an accommodation that will allow it to continue serving the children of Philadelphia in a manner consistent with its religious beliefs; it does not seek to impose those beliefs on anyone else. The refusal of Philadelphia to contract with CSS for the provision of foster care services unless it agrees to certify same-sex couples as foster parents cannot survive strict scrutiny, and violates the First Amendment.”

• Justice Samuel Alito wrote an opinion concurring in the judgment that was joined by Justice Clarence Thomas and Justice Neil Gorsuch. He called for a more expansive ruling that overruled Smith. 

“In Employment Div., Dept. of Human Resources of Ore. v. Smith (1990), the Court abruptly pushed aside nearly 40 years of precedent and held that the First Amendment’s Free Exercise Clause tolerates any rule that categorically prohibits or commands specified conduct so long as it does not target religious practice. Even if a rule serves no important purpose and has a devastating effect on religious freedom, the Constitution, according to Smith, provides no protection. This severe holding is ripe for reexamination.”

• Gorsuch also wrote an opinion concurring in the judgment that was joined by Alito and Thomas, and like Alito’s opinion, called for Smith to be overturned:

“What possible benefit does the majority see in its studious indecision about Smith when the costs are so many? The particular appeal before us arises at the intersection of public accommodations laws and the First Amendment; it involves same-sex couples and the Catholic Church. Perhaps our colleagues believe today’s circuitous path will at least steer the Court around the controversial subject matter and avoid “picking a side.” But refusing to give CSS the benefit of what we know to be the correct interpretation of the Constitution is picking a side. Smith committed a constitutional error. Only we can fix it. Dodging the question today guarantees it will recur tomorrow. These cases will keep coming until the Court musters the fortitude to supply an answer. Respectfully, it should have done so today.”

• Additionally, Justice Amy Coney Barrett wrote an opinion concurring in the judgment that was joined by Justice Brett Kavanaugh, and by Justice Stephen Breyer for all but the first paragraph in which Barrett suggested the “textual and structural arguments against Smith are more compelling.” However, she concluded that she saw “no reason to decide in this case whether Smith should be overruled, much less what should replace it.”

— Eric Revell

(Photo Credit: iStock.com / lucky-photographer)