In a closely-watched case, the Supreme Court invalidated a Philadelphia ordinance that purportedly banned discrimination against foster children and aspiring foster parents on grounds of sexual orientation or gender identity. The June 17 ruling held that, by declining to continue a contract for foster care services that had long been given to the City of Brotherly Love’s Roman Catholic Archdiocese, the nation’s sixth-largest city violated the Constitution’s Freedom of Religion clause.
The decision marks the second time the Court, under the leadership of Chief Justice John Roberts, carved out exemptions to the 2015 ruling that established constitutional protection for the rights of LGBTQ individuals on those grounds.
“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,” wrote Chief Justice John Roberts for the unanimous court.
At issue was a 2018 decision by the Cradle of Liberty’s human services agency to cease referring foster children to the archdiocese’s Catholic Social Services branch for placement in temporary homes, a task CSS could undertake under a state law. According to Roberts’ opinion, the city determined that CSS’ refusal to place foster children with same-sex couples violated a local ordinance and a clause in the contract between the Workshop of the World and the archdiocese. Philadelphia officials refused to renew the contract unless CSS agreed to abide by the ordinance.
The archdiocese, along with three foster parents, sued the Quaker City, its Human Resources Commission, and its human resources agency. They alleged the refusal to refer foster children for placement violated both the Freedom of Religion and Freedom of Speech clauses of the First Amendment and asked for a preliminary injunction requiring renewal of the contract. A federal district judge and the 3rd U.S. Circuit Court of Appeals refused the request, reasoning that the city’s demand that the church agree not to discriminate against same-sex couples was a generally applicable policy and did not reflect any hostility to religion.
“CSS’s theme devolves to this: the City is targeting CSS because it discriminates against same-sex couples; CSS is discriminating against same-sex couples because of its religious beliefs; therefore the City is targeting CSS for its religious beliefs,” wrote Judge Thomas Ambro of Wilmington, Del. in the 3rd Circuit’s April 2019 opinion. “But this syllogism is as flawed as it is dangerous,” Ambro wrote. “It runs directly counter to the premise of Smith that, while religious belief is always protected, religiously motivated conduct enjoys no special protections or exemption from general, neutrally applied legal requirements.”
Ambro, along with Philadelphia-based judges Anthony Scirica and Marjorie Rendell, concluded that “sincerely held and strongly felt religious beliefs” do not mean that a local government’s regulation of conduct that reflects these convictions is a form of “antipathy.” “If all comment on religiously motivated conduct by those enforcing neutral, generally applicable laws against discrimination is construed, as ill will against the religious belief itself, then Smith is a dead letter, and the nation’s civil rights laws might be as well,” the 3rd Circuit panel decided.
Ambro referred to a 1990 Supreme Court decision, Employment Division v. Smith, where the justices decided that the Free Exercise Clause does not “relieve an individual of the obligation to comply with a valid and neutral law of general applicability on the ground that the law proscribes (or prescribes) conduct that his religion prescribes (or proscribes).” “[R]eligious or conscientious objections do not supersede the basic obligation to comply with generally applicable civil rights laws provided those laws are applied neutrally,” Ambro said.
The Supreme Court disagreed with the 3rd Circuit, finding that the contractual anti-discrimination clause demanded by Philadelphia officials was not “generally applicable.” The language, according to Roberts, “incorporates a system of individual exemptions, made available in this case at the sole discretion of the” city’s human resources commissioner. The Employment Division v. Smith decision, Roberts wrote, bars authorities from refusing an exemption in “cases of religious hardship without compelling reason.”
The unanimous opinion rejected the city’s arguments that it should be held to a different standard when it acts as a manager of government programs than when it writes an ordinance. “We have never suggested that the government may discriminate against religion when acting in its managerial role,” Roberts wrote. “No matter the level of deference we extend to [Philadelphia], the inclusion of a formal system of entirely discretionary exceptions in [the city’s standard form foster care services contract] renders the contractual nondiscrimination requirement not generally applicable.”
Roberts and the eight other justices also rejected arguments that the contractual nondiscrimination language should not apply to the archdiocese and that another clause that specifically sought to prohibit discrimination on the basis of sexual identity should instead apply. The justices also dismissed an assertion that foster care is a form of “public accommodation” that is banned by another local ordinance.
In a setback for advocates for organized religion, the justices refused to reconsider the 30-year-old Smith precedent, which subjected “neutral” and “generally applicable” laws to lenient review. Instead, the court applied the most demanding possible level of examination to the Philadelphia contract language. Roberts conceded that “the interest of the City in the equal treatment of prospective foster parents and foster children” is “a weighty one” because American “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.” He nevertheless concluded that the city did not narrowly tailor the application of its ordinance, as its strict scrutiny standard requires. “The City offers no compelling reason why it has a particular interest in denying an exception to CSS while making them available to others,” the court found.
The principal opinion’s silence about whether to overrule that 1990 decision in Employment Division v. Smith drew a sharp rebuke from Justice Samuel Alito, who wrote in a concurrence joined by Justice Neil Gorsuch that Roberts’ opinion “might as well be written on the dissolving paper sold in magic shops.” The court’s opinion, Alito continued, was “a wisp of a decision that leaves religious liberty in a confused and vulnerable state.”
“In the free exercise cases, the court has basically said if the restraint on religious freedom is fairly minor, it’s okay, but if the restriction is extensive or fairly large, then it’s not okay,” said University of Florida Levin College of Law professor Danaya Wright. “That’s generally the rule when the court has to balance conflicting constitutional rights.” She explained that the Smith case, which involved a Native American’s claim that he should be exempt on religious grounds from a state law forbidding peyote use, marked a sharp turn away from that approach. “Justice Scalia writes this completely absurd opinion saying [that] as long as it’s a completely neutral government law, it doesn’t matter what the infringement on religious freedom is and creates this completely new test for religious freedom cases.”
To advocates intent on a quest to jettison the Smith decision, the Scalia approach is problematic because laws impacting religious practices in a tangential manner are not subject to strict scrutiny, which was the court’s norm before that 1990 ruling. “Alito is really upset [the justices] don’t overrule Smith and get it back to the way it was,” Wright said.