Philadelphia Can’t Legally End Contract with Discriminatory Organization Catholic Social Services
Today, the Supreme Court issued a unanimous ruling on Fulton v. City of Philadelphia in favour of Catholic Social Services (CSS), a discriminatory foster agency that refuses to place children with unmarried couples or same-sex married couples. CSS argued that the city of Philadelphia’s decision to refuse to renew its contract with CSS unless it agreed to serve LGBT couples as foster parents violates the First Amendment. Some pundits expected the court would use this case as a means of overturning the court’s 1990 decision in Employment Division v. Smith, which would have significantly changed the judicial landscape around “freedom of religion” cases. However, the court sidestepped the issue by narrowly ruling on an exception clause in Philadelphia’s anti-discrimination policy.
Worryingly, the court was only able to rule narrowly in this case because it already essentially overturned Smith in April, in Tandon v. Newsom, a shadow docket ruling.
This decision comes in at a time when more than 250 anti-LGBTQ bills have been introduced by Republican lawmakers in state legislatures in 2021. Prior to 2021, 2015 held the record of the worst year for anti-LGBTQ legislation in the U.S. at 15 anti-LGBTQ laws. The dramatic swell in anti-LGBTQ laws is due to Project Blitz, a right-wing megaproject intended to pass discriminatory laws with the goal of having challenges these laws reach the majority-Catholic Supreme Court. Organizations like the The Becket Fund for Religious Liberty, which funded Fulton v. City of Philadelphia, are a part of Project Blitz. The Becket Fund has so far taken on multiple cases that originated with Project Blitz’s legislation.
“They want to get legal rulings that there are religious and free speech rights to violate these laws,” said Jennifer Pizer, law and policy director at Lambda Legal, a national LGBTQ legal organization. “We have seen a significant rise and a very troubling rise in these cases, and it’s not an accident.”
Project Blitz is in part emboldened by the Supreme Court’s recent sympathy towards freedom to discriminate arguments.
The latest ruling continues a trend in which the high court has looked kindly on religion. In 2020 alone, the court ruled in favor of religious freedom by making religious education eligible for public aid in some circumstances, exempting religious schools from most employment discrimination claims, and allowing religious or moral exemptions for employers who oppose contraceptives.
And that was after rulings in recent years that made churches eligible for some public funds, upheld public prayer at government meetings, exempted religious objectors from laws regarding contraception and same-sex marriage, and allowed a mammoth Latin cross to remain on government land.
Eleven states have laws allowing faith-based foster care agencies to exclude LGBTQ parents, and several more states are considering similar legislation. This ruling also comes down during a time when LGBTQ youth are under acute attack — the majority of anti-LGBT legislation targets LGBTQ youth, and LGBTQ youth are dramatically overrepresented in the U.S. foster system, with rates ranging from 24 to 34 percent. LGBT youth are often kicked out of their homes by bigoted families, or abused for their identity. And finding those LGBTQ youths affirming homes that don’t perpetuate abuse is a stated priority of Philadelphia’s policy against CSS’s discrimination.
When the city of Philadelphia learned that CSS refused to serve same-sex couples, they chose not to renew their contract with CSS unless CSS stopped discriminating against same-sex couples. Philadelphia added to its contracts a new nondiscrimination policy:
Rejection of Referral. Provider shall not reject a child or family including, but not limited to, . . . prospective foster or adoptive parents, for Services based upon . . . their . . . sexual orientation . . . unless an exception is granted by the Commissioner or the Commissioner’s designee, in his/her sole discretion.
from: https://www.supremecourt.gov/opinions/20pdf/19-123_g3bi.pdf
The Court ruled that because the Commissioner or the Commissioner’s designee could grant an exception, it should, as the city has no “compelling reason” not to grant it:
But the City “may not refuse to extend that [exemption] system to cases of ‘religious hardship’ without compelling reason.”
from: https://www.supremecourt.gov/opinions/20pdf/19-123_g3bi.pdf
This judgment argues, in essence, that CSS’s discrimination against LGBT people is not a compelling reason to refuse to grant CSS an exception. That implies that religion enjoys a special status that supersedes other non-discrimination laws, in a climate where religion is being weaponized to justify discrimination against LGBTQ people.
This ruling is not narrow in the typical sense, because before April the mere presence of a secular exemption, like in Fulton, would’ve made no difference.
In April, a shadow docket ruling on Tanden essentially overwrote Smith, and the court changed the law to reflect something called “most favored nation” theory:
Although the conservative majority’s decision was unsigned and ran just four pages long, it radically altered the law of religious liberty. Since 1990’s Employment Division v. Smith, the Supreme Court has not interpreted the First Amendment’s free exercise clause to require religious exemptions to laws that don’t discriminate against religion. In Tandon, however, the majority effectively overturned Smith by establishing a new rule, often called the “most favored nation” theory. Under this doctrine, any secular exemption to a law automatically creates a claim for a religious exemption, vastly expanding the government’s obligation to provide religious accommodations to countless regulations. In Tandon, for instance, the Supreme Court held that California had to let people gather indoors for Bible study because it allowed them to gather indoors to get a haircut, eat, or take a bus; if Californians can get pedicures, they must also be permitted to spend hours in close quarters discussing the Bible. And the Supreme Court created this sweeping new rule through its shadow docket — those cases decided with minimal briefing and no oral argument outside the court’s normal procedure.
Smith says the free exercise clause of the First Amendment protects against the government targeting religious practice for disfavored treatment, but does not grant a right to exemptions from general law. Almost immediately after Smith, there were efforts to read into it a broader “most favored nation” theory that said: Any time the government grants an exemption to a law, it has an obligation to grant a religious exemption, too, unless the government meets strict scrutiny. But that was not the law of the land until Friday night.
from: https://slate.com/news-and-politics/2021/04/supreme-court-religious-liberty-covid-california.html
Since it’s unclear whether Philadelphia can easily remove its exception clause, it’s difficult to say whether Philadelphia will be able to restrict CSS’s access to the foster system:
Hashim Mooppan, a Justice Department attorney who argued on behalf of the U.S. in favor of CSS, said that Philadelphia’s nondiscrimination policy targeted religion because it provided exceptions for some secular purposes, but did not provide an exemption to CSS.
“The city both requires, tolerates and itself engages in the consideration of protected traits when certifying and placing foster children,” Mooppan said, noting that a potential foster parent’s disability status or race could sometimes be considered.
from: https://www.supremecourt.gov/DocketPDF/19/19-123/144793/20200603145511974_19-123tsacUnitedStates.pdf
If disability and race are standard considerations in deciding where to place children, (for example, preferring to place Black children with Black foster parents,) then Philadelphia may not be willing to do away with its exception clause. Moreover, the change with Tanden means that the existance of any secular exception to a rule creates a hole for religious discrimination to enter.
