Education

Supreme Court to Revisit Key Church-State Precedent in Foster-Care Case

By Mark Walsh — February 24, 2020 3 min read
  • Save to favorites
  • Print

Washington

The U.S. Supreme Court on Monday agreed to take up a challenge by the social-services agency of the Roman Catholic Archdiocese of Philadelphia to that city’s refusal to refer foster children because the agency would not place such children with same-sex couples.

The court’s decision to hear the case has implications not only for the ongoing debate over religiously motivated objections to same-sex marriage, but also for a 30-year-old Supreme Court precedent that made it easier for neutral laws to restrict religious practices.

The appeal in Fulton v. City of Philadelphia (Case No. 19-123) asks the justices to reconsider that 1990 ruling in Employment Division, Department of Human Resources of Oregon v. Smith, in which the court cast aside a long-prevalent “strict scrutiny” test for evaluating government action that infringed the free exercise of religion guaranteed in the First Amendment.

In Smith, a case in which the state of Oregon denied unemployment compensation to American Indian counselors who had ingested the hallucinogen peyote as part of their religious rituals, the court said government actions that infringed on religious exercise need only be justified under an easier-to-meet rational-basis test.

An overruling of the 1990 case might be felt in public and private education in unpredictable ways. Last year, in an appeal involving a public high school football coach disciplined for leading prayers on the football field immediately after games, four conservative justices joined a opinion that suggested Smith be revisited.

The February 2019 opinion by Justice Samuel A. Alito Jr., also signed by Justices Clarence Thomas, Neil M. Gorsuch, and Brett M. Kavanaugh, agreed with the court that the coach’s case had factual issues that made it inappropriate for full review at the time.

But Alito said that the court in Smith had “drastically cut back on the protection provided by the free-exercise clause,” and he essentially called for a chance to “revisit” the decision.

Although the court does not announce publicly how many justices voted to grant review of a particular case, such review only requires four votes. The Philadelphia case will provide that chance to reconsider Smith.

“The court ... should revisit Smith and return to a standard that can better balance governmental interests and fundamental rights,” says the appeal for Catholic Social Services filed by the Becket Fund for Religious Liberty. “Surely the court that decided Smith could not have envisioned that Smith would be used to permit Philadelphia to shut down a century-old ministry because the city disagrees with the Archdiocese over marriage. This is precisely the sort of church-state conflict the Free Exercise Clause was designed to prevent.”

Catholic Social Service’s court papers say the city of Philadelphia has targeted the agency because of the disagreement over its views on same-sex marriage.

“As a Catholic agency, CSS cannot provide written endorsements for same-sex couples which contradict its religious teachings on marriage,” its brief said. The church-based views have not prevented any couples from fostering children because Philadelphia, where more than 6,000 children are in foster care, has a diverse array of social-service agencies, the brief said.

Philadelphia said in a brief that it is merely applying its city prohibition on discrimination based on sexual orientation.

“Excluding qualified parents based solely on their sexual orientation ... would do a disservice to children in the foster system, unnecessarily limit the pool of available parents, and send a very strong signal to the LGBTQ community that its rights are not protected,” the city said.

Both a federal district court and the U.S. Court of Appeals for the 3rd Circuit, in Philadelphia, ruled for the city in the suit over CSS being blocked from the program, with the appeals court relying significantly on the Smith decision.

“The city’s nondiscrimination policy is a neutral, generally applicable law, and the religious views of CSS do not entitle it to an exception from that policy,” the appeals court said. "[CSS] has failed to make a persuasive showing that the city targeted it for its religious beliefs, or is motivated by ill will against its religion, rather than sincere opposition to discrimination on the basis of sexual orientation.”

Both the city and two intervening advocacy groups represented by the American Civil Liberties Union argued that the case was a poor vehicle for reconsidering the Smith decision because, among other reasons, the city would prevail under a strict-scrutiny analysis.

But the court will take up the case sometime during its next term.

Related Tags:

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


Commenting has been disabled on edweek.org effective Sept. 8. Please visit our FAQ section for more details. To get in touch with us visit our contact page, follow us on social media, or submit a Letter to the Editor.


Events

This content is provided by our sponsor. It is not written by and does not necessarily reflect the views of Education Week's editorial staff.
Sponsor
Teaching Webinar
6 Key Trends in Teaching and Learning
As we enter the third school year affected by the pandemic—and a return to the classroom for many—we come better prepared, but questions remain. How will the last year impact teaching and learning this school
Content provided by Instructure
This content is provided by our sponsor. It is not written by and does not necessarily reflect the views of Education Week's editorial staff.
Sponsor
Equity & Diversity Webinar
Leadership for Racial Equity in Schools and Beyond
While the COVID-19 pandemic continues to reveal systemic racial disparities in educational opportunity, there are revelations to which we can and must respond. Through conscientious efforts, using an intentional focus on race, school leaders can
Content provided by Corwin
This content is provided by our sponsor. It is not written by and does not necessarily reflect the views of Education Week's editorial staff.
Sponsor
Equity & Diversity Webinar
Evaluating Equity to Drive District-Wide Action this School Year
Educational leaders are charged with ensuring all students receive equitable access to a high-quality education. Yet equity is more than an action. It is a lens through which we continuously review instructional practices and student
Content provided by BetterLesson

EdWeek Top School Jobs

Teacher Jobs
Search over ten thousand teaching jobs nationwide — elementary, middle, high school and more.
View Jobs
Principal Jobs
Find hundreds of jobs for principals, assistant principals, and other school leadership roles.
View Jobs
Administrator Jobs
Over a thousand district-level jobs: superintendents, directors, more.
View Jobs
Support Staff Jobs
Search thousands of jobs, from paraprofessionals to counselors and more.
View Jobs

Read Next

Education Schools Get the Brunt of Latest COVID Wave in South Carolina
In the past few weeks, South Carolina has set records for COVID-19 hospitalizations and new cases have approached peak levels of last winter.
4 min read
Two Camden Elementary School students in masks listen as South Carolina Gov. Henry McMaster talks about steps the school is taking to fight COVID-19, Wednesday, Sept. 15, 2021, in Camden, S.C. McMaster has adamantly and repeatedly come out against requiring masks in schools even as the average number of daily COVID-19 cases in the state has risen since early June. (AP Photo/Jeffrey Collins)
Education More States Are Requiring Schools to Teach Native American History and Culture
Advocates say their efforts have gained some momentum with the nation’s reckoning over racial injustice since the killing of George Floyd.
3 min read
A dancer participates in an intertribal dance at Schemitzun on the Mashantucket Pequot Reservation in Mashantucket, Conn., Saturday, Aug. 28, 2021. Connecticut and a handful of other states have recently decided to mandate students be taught about Native American culture and history. (AP Photo/Jessica Hill)
Education Judge's Temporary Order Allows Iowa Schools to Mandate Masks
A federal judge ordered the state to immediately halt enforcement of a law that prevents school boards from ordering masks to be worn.
4 min read
Iowa Gov. Kim Reynolds speaks to reporters following a news conference, Thursday, Aug. 19, 2021, in West Des Moines, Iowa. Reynolds lashed out at President Joe Biden Thursday after he ordered his education secretary to explore possible legal action against states that have blocked school mask mandates and other public health measures meant to protect students against COVID-19. Reynolds, a Republican, has signed a bill into law that prohibits school officials from requiring masks, raising concerns as delta variant virus cases climb across the state and schools resume classes soon. (AP Photo/Charlie Neibergall)
Education Hurricane Ida Deals New Blow to Louisiana Schools Struggling to Reopen
The opening of the school year offered teachers a chance to fully assess the pandemic's effects, only to have students forced out again.
8 min read
Six-year-old Mary-Louise Lacobon sits on a fallen tree beside the remnants of her family's home destroyed by Hurricane Ida, in Dulac, La., on Sept. 4, 2021. Louisiana students, who were back in class after a year and a half of COVID-19 disruptions kept many of them at home, are now missing school again after Hurricane Ida. A quarter-million public school students statewide have no school to report to, though top educators are promising a return is, at most, weeks away, not months.
Six-year-old Mary-Louise Lacobon sits on a fallen tree beside the remnants of her family's home destroyed by Hurricane Ida, in Dulac, La., on Sept. 4, 2021.
John Locher/AP