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

By Mark Walsh — February 24, 2020 3 min read
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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.

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

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