The U.S. Supreme Court ruled Thursday in favor of a Philadelphia Catholic foster agency accused of discrimination by the City of Philadelphia.
The foster agency, Catholic Social Services (CSS) filed suit against the City of Philadelphia, seeking to enjoin its referral freeze on the grounds that the City was violating the Free Exercise and Free Speech Clauses of the First Amendment. Following a 2018 newspaper story, the City had sought to discontinue its contract with CSS over CSS’s refusal to certify same-sex couples as foster parents. The City cited a non-discrimination provision in its contract with CSS and the non-discrimination requirements of the citywide Fair Practices Ordinance.
The Philadelphia Department of Human Services assumes custody of children that cannot remain in their homes and relies on contracts with private foster care agencies to place them with foster families. State-licensed foster agencies have the authority to certify suitable foster families based on statutory criteria. CSS will not certify same-sex couples or unmarried couples of any sexual orientation because of its religious beliefs. However, it will certify gay or lesbian individuals as single foster parents and it will place children regardless of their sexual orientation. CSS has never been asked by a same-sex couple for certification. More than 20 other agencies in the City currently certify same-sex couples.
The Supreme Court determined the City’s refusal to contract with CSS unless it agreed to certify same-sex couples was a violation of the Free Exercise Clause of the First Amendment. The Court reasoned that the City’s policies were not neutral and generally applicable.
Chief Justice Roberts delivered the opinion of the Court, joined by justices Breyer, Sotomayor, Kagan, Kavanaugh, and Barrett. The remaining justices concurred, but filed or joined separate concurring opinions.
The Court’s opinion cited Employment Division, Department of Human Resources of Oregon v. Smith, 494 U.S.872 (1990) for the conclusion that “A law is not generally applicable if it ‘invite[s]’ the government to consider the particular reasons for a person’s conduct by providing ‘a mechanism for individualized exemptions’ […] ‘where the State has in place a system of individual exemptions, it may not refuse to extend that system to cases of ‘religious hardship’ without compelling reason.’”
The non-discrimination provision in the City’s foster care contract carved out a discretionary exception to the rule that foster agencies provide services without regard to sexual orientation. The Court reasoned this exception rendered the non-discrimination provision not generally applicable. In fact, because the state law made the discretionary exception applicable to the contract’s general prohibition on sexual orientation discrimination, the contract contained no generally applicable non-discrimination requirement.
The Fair Practices Ordinance did not apply to CSS’s action at all, the Court said. The Ordinance forbids interfering with the public accommodations opportunities of an individual based on sexual orientation, but foster care certification, the Court said, is not a public accommodation because it is a uniquely selective assessment.
Because the contractual non-discrimination requirement burdens CSS’s religious exercise and is not generally applicable, it is subject to the most rigorous standard of scrutiny. A policy scrutinized under the most rigorous standard, strict scrutiny, must advance a compelling interest and must be narrowly tailored. The City of Philadelphia’s policies did not survive that level of scrutiny here.
The Court determined that the City had not shown that granting CSS an exception would put its interests of maximizing the number of foster families and minimizing liability at risk. As for the City’s interest in the equal treatment of prospective foster parents and children, the Court found its system of exceptions undermined the City’s contention that it would not stray from its anti-discrimination policy for any reason.
The Court’s opinion concluded, “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 three concurrences, authored by justices Gorsuch, Alito, and Barrett, respectively, questioned whether the Court should have reexamined its holding in Smith, Justice Gorsuch writing that it “has proven unworkable in practice.”
Additional Reading
Supreme Court rules for Catholic foster agency that refuses to place children with same-sex couples, ABA Journal (June 17, 2021)
Supreme Court Rules Catholic Group Doesn’t Have To Consider LGBTQ Foster Parents, NPR (June 17, 2021)
Fulton v. Philadelphia, 593 U.S. __ (2021)
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