TORI SIMKOVIC—The battle between LGBTQ rights and religious freedom continues in the United States Supreme Court. On November 4, the Court will hear oral arguments in Fulton v. City of Philadelphia, a case that will determine whether private agencies that receive tax-payer funding can claim religious freedom justifies discrimination against same-sex couples.
For years, the City of Philadelphia had been paying Catholic Social Services (CSS)—a foster care agency—to perform a variety of services, including identifying, recruiting, training and certifying potential foster parents. In 2018, the City learned, through a newspaper article, that CSS had a policy of refusing service to same-sex couples seeking to become foster parents. As a Catholic agency, CSS claimed it “cannot provide written endorsements for same-sex couples which contradict its religious teachings on marriage.” Ironically, the case will be argued before the Court just two weeks after Pope Francis announced his support for same-sex civil unions, saying: “Homosexual people have the right to be in a family. They are children of God.”
After the newspaper article about CSS was published, the City decided to stop placing children with the agency, and eventually allowed their contractual relationship to expire. CSS sued, asking the court to require the City to renew the contractual relationship, while still allowing CSS to refuse to serve same-sex couples. The agency asserted that the City violated the Free Exercise Clause of the First Amendment by excluding “CSS from foster care because CSS refuses to embrace the City’s beliefs about marriage.”
The Supreme Court established its current Free Exercise Clause doctrine in 1990 in Employment Division v. Smith. In Smith, the State of Oregon denied the plaintiffs unemployment benefits because they were fired for their use of an illegal drug: peyote. The plaintiffs asserted that their use of peyote was a religious ritual, and the State’s denial of benefits for their religious practice constituted a Free Exercise Clause violation. The Court rejected their claim and established that a government action that is neutral and generally applicable does not violate the Free Exercise Clause. Additionally, the Smith Court held that a law or government action does not violate the Free Exercise Clause unless it imposes a substantial burden on the objector’s practice of religion and it fails strict scrutiny. The decision, written by Justice Scalia, “produced widespread disbelief and outrage” by proponents of broad religious freedom, and Justice Alito has noted that the Smith decision “drastically cut back on the protection provided by the Free Exercise Clause.” Now, CSS is asking the Supreme Court to revisit the Smith decision. The focus in Fulton will be whether the City’s anti-discrimination law is neutral and generally applicable.
The Court has held that a government action is neutral if it does not explicitly target religion, and is generally applicable if it applies to both non-religious and religious actors. As such, anti-discrimination laws are typically neutral and generally applicable. CSS has asserted the Court should consider a wide array of evidence to determine whether a government action is neutral and generally applicable, as opposed to the Third Circuit Court of Appeals’ standard. The Third and Ninth Circuits have held that to succeed under the Smith rule, a plaintiff “must show that it was treated more harshly than the government would have treated someone who engaged in the same conduct but held different religious views.” According to CSS, this framework places an impossible burden on plaintiffs pursuing a Free Exercise claim.
Furthermore, in its Statement of the Case, CSS claimed that faith-based institutions will have to shut down if they are forced to sacrifice their religious beliefs, that there is a shortage of foster-care agencies, and that families turned away can go to other agencies. The ACLU, who filed an amicus brief in this case, contended that CSS’ assertions were based on myths, and that in reality, there is a shortage of foster care families, not agencies, and families who are turned away cannot easily go to a different agency. Meanwhile, the City of Philadelphia maintained it has the right to require agencies it contracts with to abide by its rules of non-discrimination, and that it “did not act with religious hostility in enforcing its generally applicable and longstanding nondiscrimination policy.” The City acknowledged it has a good reason for its ban on discrimination: excluding qualified parents would send “a very strong signal to [the LGBTQ] community that [its] rights are not protected” and would tell LGBTQ youth in the foster care system that “while ‘[we] support you now, we won’t support your rights as an adult.’”
This is not the first clash between religious freedom and LGBTQ rights, and it likely will not be the last. Just three years ago, the Court decided Masterpiece Cakeshop v. Colorado Civil Rights Commission, upholding a baker’s right to refuse to bake a wedding cake for a same-sex couple. There, however, the Court refused to decide generally whether the anti-discrimination law at issue violated the Free Exercise Clause, instead ruling based on comments made by the Colorado Civil Rights Commission that suggested a hostility to religion. Still, legal analysts have said that in the Masterpiece Cakeshop decision, the Court “perhaps without quite realizing it, accepted the plaintiffs’ expansive definition of religious discrimination.”
Now, LGBTQ advocates fear their rights will continue to erode, especially considering Justice Alito and Justice Thomas’ continued hostility to Obergefell v. Hodges, the case that recognized the Constitutional right to same-sex marriage. That fear is compounded by Amy Coney Barrett’s confirmation to the Supreme Court, given her religious background and her refusal to say Obergefell was correctly decided. With Barrett on the Court, the Fulton case may come out in favor of CSS, opening the door to state-funded discrimination operating under the guise of religious freedom.