The United States Supreme Court heard oral arguments Nov. 4 in its first major religious liberty case since the death of Justice Ruth Bader Ginsburg and installation of a new firm conservative majority on the court.
The case, Fulton v. Philadelphia, goes to the heart of the culture wars fought by the Religious Right for the past four decades, which has included years of efforts to turn the high court in a more conservative direction. At issue in this case: Can religious agencies receiving government funding discriminate on the basis of religion, gender, marital status or sexual orientation?
One lengthy thread of the oral arguments turned on a question of whether discrimination on the basis of sexual orientation is similar to or different than discrimination on the basis of race or other factors.
The case
Catholic Social Services challenges the city of Philadelphia’s foster care contracting practices. The city requires agencies that recruit, screen, train and certify foster parents to adhere to the city’s nondiscrimination law, which prohibits agencies from rejecting prospective foster parents based on religion, sexual orientation and other protected categories.
The city says it has sought to create a level playing field for all agencies that work with foster parents. Because Catholic Social Services would not meet the nondiscrimination requirements of the city, its contract to provide certain foster care services was allowed to expire, even though the city still worked with Catholic Social Services on other issues.
The faith-based agency sued, claiming discrimination by the city. And that, in turn, set up a monumental case that observers on both sides hope or fear could shift government policy in many other areas where faith-based groups want to set limits on who they will work with and under what terms.
Oral arguments heard
Lori Windham
In questioning attorney Lori Windham, representing Catholic Social Services, most of the justices played true to expected form — Justices Clarence Thomas and Samuel Alito and Brett Kavanaugh teeing up questions that allowed Windham to make her case, and Justices Stephen Breyer and Elena Kagan and Sonia Sotomayor asking probing questions that appeared to challenge the Catholic agency’s reasoning.
But all eyes were on the newest justice, Amy Coney Barrett, who not only is considered a conservative but also is a practicing Catholic and adoptive mother.
Barrett asked one of the more probing legal questions about the legal precedent that brought this case before the court, the application of a previous Supreme Court ruling called Employment Division v. Smith. Catholic Social Services has said that ruling should not have been applied in this situation. And critics of Catholic Social Services’ position fear Smith could be overturned by this case.
Referencing the agency’s objection to applying Smith, Barrett noted that Windham also said the Catholic agency should prevail under application of Smith. She wanted to know: “So, if you’re right about that, why should we even entertain the question whether to overrule Smith?
Windham responded that Smith is a “bad fit” that has caused “negative results.”
She added: “Developments since Smith was decided make clear that its prediction has actually not borne out, that it is possible for the government to accommodate and partner with religious organizations to do religious exercise.”
Comparing same-sex couples to interracial couples
Barrett then gave a comparative example: “What if there was an agency who believed that interracial marriage was an offense against God and, therefore, objected to certifying interracial couples as foster families? Would they be entitled to an exemption and, if so, how is that distinguishable from … CSS’s refusal to certify children to couples in same-sex marriages?”
Windham responded that the matter of interracial couples is different than consideration of same-sex couples.
Windham responded that the matter of interracial couples is different than consideration of same-sex couples.
“This court has been clear in Loving and other cases that government has a compelling interest in eradicating racial discrimination. … It’s hard to imagine the city making that kind of concession in a case involving interracial marriage.”
In subsequent questioning of Hashim Mooppan, representing the U.S. Department of Justice in arguing for Catholic Social Services, Justice Breyer picked up the interracial analogy. He noted Windham’s position was that requiring interracial couples to be served is a compelling government interest but requiring same-sex couples to be served is not.
Hashim Mooppan
Breyer then gave his own examples: “The government wants to contract to a food distributor to supply food on all the military bases, and because they are Orthodox Jews, they want nothing to do with ham … Or consider a religion which says we’re bidding on this contract for local transportation and we want men and women to sit separately, or we want women to wear head scarves. Now, in a contracting basis, is it your opinion that the government just has to do that, has to give into the religious belief, or not?”
Moopan replied that the government would be required to act in a generally neutral way but said the current case is different because Philadelphia “is forced to have an anti-discrimination provision but then itself recognizes myriad exceptions.” And, he added, the government has a compelling interest in eradicating racial discrimination — implying there is no such interest in eradicating discrimination based on sexual orientation.
Breyer interrupted to drill down on this question.
“I want to interrupt you right here because now two of you have said this, that we should write an opinion which says discrimination on the basis of race, constitutionally speaking, is different than discrimination on the basis of gender, on the basis of religion, on the basis of nationality, on the basis of homosexuality, all right? Is that the opinion you want us to write?”
Mooppan responded that the court has previously ruled that “race is unique in this country’s constitutional history and eradicating that type of racial discrimination … presents a particularly unique and compelling interest.”
Justice Kagan: “Do you think there’s a compelling state interest to try to eradicate discrimination against gays and lesbians?
Other justices carried on this line of questioning with Mooppan, culminating in a direct confrontation from Justice Kagan: “Do you think there’s a compelling state interest to try to eradicate discrimination against gays and lesbians? Is that a compelling state interest?”
Mooppan dodged the question several times, but Kagan kept pressing: “Is it a compelling state interest?”
Finally, Mooppan said: “In the abstract, perhaps, but, on the facts of this case, the government has undermined that interest.”
Pressed further by Kagan about why there would be a difference, Mooppan said: “Because racial discrimination is particularly unique and compelling.”
What was Philadelphia requiring?
In questioning Windham, Justice Breyer homed in on the exact nature of what the city of Philadelphia has asked Catholic Social Services to do in order to meet its criteria.
“They say that they aren’t requiring you to endorse same-sex marriages. They say all they’re asking you to do is evaluate a couple without reference to whether they are same-sex or not. … It says your objection is to being required to evaluate and provide written endorsements of a same-sex relationship. But they aren’t saying to do that.”
“Certifying a home of a same-sex couple would be in violation of that religious belief, … a home study is essentially a validation of the relationships in the home.”
Windham responded: “The head of Catholic Social Services testified that certifying a home of a same-sex couple would be in violation of that religious belief, that a home study is essentially a validation of the relationships in the home, and that a final home study includes a written endorsement of the relevant relationships of the foster parent.”
In essence, Windham said, Catholic Social Services would like to participate in the city’s evaluation and placement program in cases that do not violate its religious beliefs but be allowed not to participate in certain cases, such as dealing with same-sex couples.
In later questioning by Justice Kavanaugh, Windham said Catholic Social Services “is not going to prevent any same-sex couple from being able to foster in Philadelphia. There are many other agencies out there. They’re merely asking to be able to step aside and recuse if that situation were ever to arise.”
Contractor versus licensee
Justice Sotomayor probed the difference between what it means to be a government contractor or licensee and indicated a belief that agencies such as Catholic Social Services are acting like contractors and should not be surprised that they are required to follow the employer’s rules.
Windham turned to the historical nature of the agency’s relationship with child services in Philadelphia.
“What the city’s 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,” she said.
The question of whether Catholic Social Services was a contractor or something else returned to the arguments repeatedly, with multiple justices addressing it.
Justice Kagan gave a hypothetical of a state outsourcing a prison to a private contractor with a stipulation that no drug use can be allowed, yet one of those contractors has a religious basis for the use of peyote — a direct reference to a similar actual case, Employment Division v. Smith, that lies at the heart of how the Philadelphia case was decided by lower courts. Kagan asked: Should such an exception be allowed for prison operators?
Windham replied that the state likely would prevail in its restriction but suggested the reasoning does not apply to the present case.
First, “unlike here, the government’s interests are going to be a lot stronger. The government there is actually taking something that’s traditionally a public function and handing it out to private organizations, as opposed to here, taking — moving in and increasingly regulating and restricting work that has traditionally been private.”
Before she could make a second point, Kagan broke in to ask a related question: “Would you have a different argument if a religious group that had never engaged in this kind of activity said now we want to? Would that make a difference to you?”
Windham said it would make a difference. “I think the history here is important. I think that when you’re looking at the government’s interest in that case, that would be relevant too.”
Neal Katyal
Attorney Neal Katyal, representing the city of Philadelphia, told the court Catholic Social Services wanted to be treated differently than other contractors with the city.
“A universal clause in every contract bars sexual orientation discrimination when carrying out that delegated power. That clause contains no exceptions, and it applies equally to every (agency), religious and secular alike.”
Much of the questioning of Kaytal focused on detailed legal aspects and the exact process used in making foster care and adoption placements in Philadelphia.
Is there a win-win outcome?
Justice Kavanaugh highlighted the kind of two-headed dilemma often present in church-state cases: “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. 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.”
Because there are “very strong feelings on all sides that warrant respect,” he added, “it seems like we and governments should be looking, where possible, for win-win answers, recognizing that neither side is going to win completely on these issues given the First Amendment on the one hand and given Obergefell on the other.”
Kavanaugh then accused the city of Philadelphia of intentionally creating “a clash” and “looking for a fight” that brought this case to the Supreme Court.
Kavanaugh then accused the city of Philadelphia of intentionally creating “a clash” and “looking for a fight” that brought this case to the Supreme Court even though no same-sex couple ever has sought placement with Catholic Social Services and 30 other agencies in Philadelphia are open to serve such couples.
“What I fear here is that the absolutist and extreme position that you’re articulating would require us to go back on the promise of respect for religious believers,” Kavanaugh said.
Why this case matters
For years, many evangelical faith-based child service agencies have placed various restrictions on who they will work with. Some require foster or adoptive parents to share the agency’s particular religious views, while others focus on household living arrangements that exclude single parents or same-sex couples.
These faith-based agencies — often backed by their parochial donors or denominational bodies — claim the First Amendment’s guarantee of free exercise of religion allows them to discriminate based on their deeply held religious beliefs. The rub comes when agencies cling on to those restrictions while accepting government funding or servicing. Critics say that puts government in the role of establishing or supporting one religious belief over another — also a violation of the First Amendment.
Because of the potential to overturn Employment Division v. Smith, the ripples of this case’s outcome will reach much further into the culture wars.
BJC files brief supporting Philadelphia
Baptist Joint Committee for Religious Liberty and other Christian entities filed a friend-of-the-court brief in support of Philadelphia. The brief said religious freedom is protected by the city’s enforcement of nondiscrimination provisions in contracts for foster family certification.
“Hard cases can arise when a government’s important interests must be balanced against substantial burdens on religious exercise. This is not such a case.”
“Hard cases can arise when a government’s important interests must be balanced against substantial burdens on religious exercise,” the brief states. “This is not such a case. Here, the city’s nondiscrimination policy reflects not only a valid and compelling interest, but one that advances religious liberty, rather than infringes upon it.”
BJC’s General Counsel Holly Hollman said faith-based providers do not have a First Amendment right to demand exemption from a government contracting requirement that serves the public interest.
Holly Hollman
“When faith-based groups voluntarily contract with the government to carry out the government’s duty to find safe homes for children in its custody, they must work within the government’s guidelines to ensure qualified families aren’t turned away on the basis of religion, sexual orientation or for other discriminatory reasons,” she said. “Following the government’s rules to administer government-funded programs does not mean the faith-based organization is giving up its right to speak about core beliefs or criticize government policy in other contexts.”
Hollman said government must treat all communities, including religious communities, with equality and dignity, which means potential foster parents of Jewish, Muslim and other faith traditions will be afforded “the same opportunity to participate in a program as parents from a specific Christian denomination.”
This case reaches well beyond the foster care debate, she added. “Thousands of religious and secular agencies across the country partner with a local, state or federal government to provide government services. Whether it is recruiting foster care parents, running food pantries or providing emergency shelter, the primary concern in providing government-funded services must be ensuring that such services are provided with integrity for public purposes and without regard to religion or other protected categories.”
A Catholic archbishop responds
On the day of the court arguments, USA Today ran an op-ed by Cardinal Timothy Dolan, archbishop of New York, rallying support for Catholic Social Services.
Timothy Dolan
He cited more than 8,000 “faith-affirming foster agencies that partner with governments nationwide” combined with “countless thousands of Catholic soup kitchens, homeless shelters, prison ministries, immigration legal services, and other social services supported by the Catholic Church.” Then he explained: “Were the government permitted to tell these crucial ministries which religious beliefs are permitted — and which are proscribed — solely because these ministries partner with the government, we would all be the poorer for it.”
Contrary to the city of Philadelphia’s claims that Catholic Social Services discriminates, Dolan said the reverse is true.
“The church serves these children without discriminating on the basis of sex, sexual orientation, religion, or race,” he wrote. “Indeed, the only discrimination to be found is that of Philadelphia officials who target our ministries because they disagree with what the church believes.”
A decision in Fulton v. Philadelphia is not expected until June 2021.
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