SCOTUS Finds Philly’s Procedures Unduly Burden Agency’s Free Exercise of Religion.
Fulton v. City of Philadelphia https://www.supremecourt.gov/opinions/20pdf/19-123_g3bi.pdf
(Today’s post uses several blocks of text from the Court’s syllabus of the Fulton case.)
“Philadelphia’s foster care system relies on cooperation between the City and private foster care agencies. The City enters standard annual contracts with the agencies to place children with foster families. One of the responsibilities of the agencies is certifying prospective foster families under state statutory criteria. Petitioner Catholic Social Services has contracted with the City to provide foster care services for over 50 years, continuing the centuries-old mission of the Catholic Church to serve Philadelphia’s needy children. CSS holds the religious belief that marriage is a sacred bond between a man and a woman. Because CSS believes that certification of prospective foster families is an endorsement of their relationships, it will not certify unmarried couples—regardless of their sexual orientation—or same-sex married couples.”
“The City ultimately informed CSS that unless it agreed to certify same-sex couples the City would no longer refer children to the agency or enter a full foster care contract with it in the future. The City explained that the refusal of CSS to certify same-sex married couples violated both a non-discrimination provision in the agency’s contract with the City as well as the non-discrimination requirements of the citywide Fair Practices Ordinance.”
“CSS and three affiliated foster parents filed suit seeking to enjoin the City’s referral freeze on the grounds that the City’s actions violated the Free Exercise and Free Speech Clauses of the First Amendment.”
Holding.
“Held: The refusal of Philadelphia to contract with CSS for the provision of foster care services unless CSS agrees to certify same-sex couples as foster parents violates the Free Exercise Clause of the First Amendment. The City’s actions burdened CSS’s religious exercise by forcing it either to curtail its mission or to certify same-sex couples as foster parents in violation of its religious beliefs. “
“A law is not generally applicable if it invites the government to consider the particular reasons for a person’s conduct by creating a mechanism for individualized exemptions. Where such a system of individual exemptions exists, the government may not refuse to extend that system to cases of religious hardship without a compelling reason.”
Analysis.
“The contractual non-discrimination requirement burdens CSS’s religious exercise and is not generally applicable, so it is subject to “the most rigorous of scrutiny.” A government policy can survive strict scrutiny only if it advances compelling interests and is narrowly tailored to achieve those interests.”
“The question is not whether the City has a compelling interest in enforcing its non-discrimination policies generally, but whether it has such an interest in denying an exception to CSS. Under the circumstances here, the City does not have a compelling interest in refusing to contract with CSS. 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 the agency agrees to certify same-sex couples as foster parents cannot survive strict scrutiny and violates the Free Exercise Clause of the First Amendment.”
Conclusion.
I listened Monday, 6/21/21, to several Alliance Defending Freedom attorneys discussing this case. They think the ruling was 9-0 because the case was narrowly decided and didn’t overrule the case of Smith v. Employment Division. Many religious liberty lawyers believe Smith was wrongly decided and should be overruled.
Several of the justices have expressed a reluctance to overrule Smith unless there is a clear set of rules they can adopt at such time as they do overrule it.
Thank you!
Michael Oswald
Michael Oswald is a follower of Jesus who lives in Boise, Idaho. Unless otherwise specified, the opinions expressed in this article are his own.
© 2021 Michael S. Oswald
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