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Supreme Court Leans Toward Support for Catholic Agency in Foster-Care Case

By Mark Walsh — November 04, 2020 7 min read

The U.S. Supreme Court on Wednesday appeared inclined to rule for a Catholic social service agency that was excluded from Philadelphia’s foster-care system because the agency refuses to certify same-sex couples as foster parents.

The case of Fulton v. City of Philadelphia (No. 19-123) has implications for education chiefly for what the court may say on the tension between laws barring anti-LGBTQ discrimination and religious entities’ request for exemptions from such laws based on their sincere religious beliefs.

“It seems like this case requires us to think about the balance between two very important rights recognized by this court—the religious exercise and belief right, obviously, in the First Amendment, and the same-sex marriage right, as recognized in Obergefell,” said Justice Brett M. Kavanaugh, referring to the court’s 2015 decision in Obergefell v. Hodges.

“And it seems when those rights come into conflict, all levels of government should be careful and should often, where possible and appropriate, look for ways to accommodate both 
interests in reasonable ways,” Kavanaugh said. “There are strong—very strong feelings on all sides that warrant respect.”

That said, Kavanaugh added that it appeared to him that the city of Philadelphia “created a clash, it seems, and was looking for a fight” with the agency over Catholic views on same-sex marriage.

The case involves Catholic Social Services, an agency of the Roman Catholic Archdiocese of Philadelphia, that is challenging its exclusion from the city’s foster-care system.

In 2018, the city learned from a newspaper article that the Catholic agency had a policy of not certifying same-sex couples to become foster parents. CSS had never been approached by a same-sex couple, and if it had, it would have referred the couple to one of some 30 other foster-care agencies in the city, including a few that focus on the LGBTQ community. But another religious agency had refused to certify a same-sex couple, court papers say.

The city argues that the refusal violates contractual provisions barring discrimination on the basis of sexual orientation. Catholic Social Services says it is following Catholic teaching on same-sex marriage, and the city’s exclusion is a matter of religious hostility that violates its First Amendment speech and free-exercise-of-religion rights.

“What the city is trying to do here is tell religious groups who have been doing this prior to when the city got involved we’re going to exclude you, you can no longer carry out this work unless you take actions that are contrary to your faith,” Lori H. Windham, the lawyer representing CSS and three foster parents who have long worked with the agency, told the justices.

A federal appeals court ruled that the city was applying a neutral and generally applicable policy and thus upheld it under the Supreme Court’s 1990 decision in Employment Division, Department of Human Resources of Oregon v. Smith. In that case, the high court cast aside a long-prevalent “strict scrutiny” test for evaluating government action that infringed the free exercise of religion guaranteed under the First Amendment.

In granting the Catholic organization’s appeal, the Supreme Court asked the parties to weigh in on whether Smith should be overruled. There appeared to be mild interest among a few justices in Wednesday’s argumentsfor reconsidering Smith, though it appeared more likely the court would rule for Catholic Social Services without having to take that step.

Hashim M. Mooppan, a counselor to the U.S. solicitor general arguing in support of CSS, said the case was relatively straightforward under Smith, but not in the way the lower courts ruled.

“The city has not acted in a generally applicable and neutral way,” he said, noting that the federal government did not take a position on whether Smith should be overruled. “We think that the record makes clear that the city has recognized myriad exceptions from its anti-discrimination provision.”

These included exceptions, say, from the city’s anti-discrimination law when a prospective foster parent had a disability that meant he could not adequately care for the foster child.

The broader questions about religious liberty rights versus anti-discrimination goals kept popping up during the argument.

“If we are honest about what’s really going on here, it’s not about ensuring that same-sex couples in Philadelphia have the opportunity to be foster parents,” said Justice Samuel A. Alito Jr. “It’s the fact that the city can’t stand the message that Catholic Social Services and the Archdiocese are sending by continuing to adhere to the old-fashioned view about marriage.”

Neal K. Katyal, the lawyer representing Philadelphia, disagreed with Alito’s assertion as well as with Kavanaugh’s view that the city had picked a fight over the issue.

Katyal pointed out that the city continues to contract with CSS for certain other foster care services to the tune of $26 million per year. (CSS received about $2 million per year for its work certifying foster parents, court papers says.)

“We weren’t looking for some sort of fight here,” said Katyal. “The city was torn up about it.”

Katyal argued that allowing a foster-care agency to have a religious exemption based on sexual orientation will have a stigmatizing effect on LGBTQ youths and prospective foster parents.

“That is a compelling interest,” he said. “LGBT kids are an outsize number of people in the foster care population, and [such an exemption] will undermine the ability of the program to operate.”

Jeffrey L. Fisher, a Stanford University law professor arguing for the intervening groups that support the city, said, “I think what makes this feel like a hard case is that CSS is doing valuable work, it is acting based on traditional religious beliefs, and it may appear that the costs of accommodating it would not be too high.”

But that overlooks that CSS is acting as a government contractor in certifying foster parents, and its claim for an exemption undermines “the imperative that governmental services are made evenhandedly available to all citizens.”

Some of the court’s more-liberal members asked repeatedly about whether a religious group could claim exemptions for other protected classes.

“What is dangerous is the idea that a contractor with a religious belief could come in and say: ‘Exclude other religions. ... Exclude someone with a disability. ... Or exclude interracial couples’,” said Justice Sonia Sotomayor.

To a question about interracial marriage from Breyer, Mooppan said: “On interracial marriage, this court has made clear repeatedly that there’s a particularly compelling interest in eradicating racial discrimination.”

Justice Elena Kagan pressed Mooppan on whether the government has a compelling interest in eradicating discrimination against gays and lesbians. He said perhaps in the abstract, but that in this case Philadelphia had undermined its interest by granting exceptions to its anti-discrimination policy.

Justice Amy Coney Barrett asked questions about Smith, a hypothetical about whether a hospital managed by a Catholic group under a government contract could be required to perform abortions, and about the interracial marriage comparison.

“I think we would agree that there’s really not any circumstance we can think of in which racial discrimination would be permitted as a religious exemption,” she told Fisher. “Can you think of any example in which ... an objection to same-sex marriage would justify an exemption? Or is it like racial discrimination?”

Implications for Private Schools

Although education did not come up in the arguments, one area where this debate might be important is in the question of private religious schools that have policies of excluding LGBTQ employees or students and whether they have a right to vouchers or other public aid.

A private school in South Bend, Ind., where Barrett once served on the board has received hundreds of thousands of dollars in state scholarship funds despite reports of an anti-LGBTQ climate. Indiana law does not bar discrimination on the basis of sexual orientation or gender identity.

And a recent federal appeals court decision about a Maine program of paying private school tuition for students in towns without high schools discussed a private religious school that suggested it likely wouldn’t participate if the program were opened up to religious schools and if it was required to abide by Maine’s anti-discrimination law, which does cover sexual orientation and gender identity. (The discussion in that case, Carson v. Makin, was somewhat academic since the appeals court held that the program could not be expanded to include religious schools despite a recent U.S. Supreme Court decision in a case from Montana.)

A decision in the Philadelphia foster-care case is expected by late June.

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A version of this news article first appeared in The School Law Blog.

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