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New Supreme Court to hear potentially sweeping religious freedom case this week

The final ruling by the new conservative court could have widespread ramifications on balancing the rights between religious and secular interests

Sharonell Fulton, along with one other foster mom and Catholic Social Services, sued the city of Philadelphia after officials began refusing to contract with faith-based foster care agencies that won’t serve LGBTQ couples.
Sharonell Fulton, along with one other foster mom and Catholic Social Services, sued the city of Philadelphia after officials began refusing to contract with faith-based foster care agencies that won’t serve LGBTQ couples.
Becket Fund for Religious Liberty

When the U.S. Supreme Court narrowly legalized same-sex marriage five years ago, Justice Samuel Alito’s dissent warned of ensuing conflicts between religious objectors and those “determined to stamp out every vestige of dissent.”

Just last month, he joined fellow dissenter Justice Clarence Thomas in calling on the court to reverse the landmark ruling that they claim has made it easier for courts and governments to dismiss religious liberty “concerns” about marriage.

On Wednesday, all nine justices will hear one of those predicted conflicts in what could be the court’s most far-reaching religious freedom case of the term. The appeal to the high court comes from Catholic Social Services and two foster moms who claim Philadelphia government violated their First Amendment religious exercise rights when it required the charity to evaluate same-sex couples who want to be foster parents. The city says the requirement conforms with its nondiscrimination clause that all foster care agencies must comply with.

The case is one of several around the country pitting faith-based social service providers against states and cities struggling to enforce nondiscrimination law protecting their LGBTQ communities and respect religious freedom. But it’s not just the fate of faith-based providers of social services that’s at stake in the final outcome.

Briefs filed by cities, states, children’s rights organizations, LGBTQ advocates, legal scholars and religious groups are also taking sides on whether a 30-year-old Supreme Court precedent that is central to the case should be scrapped. The 1990 ruling that upended and redefined how many First Amendment religious rights cases are addressed was authored by the late Justice Antonin Scalia, a mentor to the court’s newest member, Justice Amy Coney Barrett.

Depending on how the new conservative majority on the court addresses that question, the final ruling by the end of June could have widespread ramifications on balancing the rights between religious and secular interests that go beyond the foster care dispute, which both sides in the case have said put their community’s most vulnerable children at risk.

“If (Scalia’s opinion) is overruled, there could be a complete reworking of not just individual laws from which religious people will regularly claim exemptions, but the whole idea of what it means to be an American and of the Constitution itself,” said Frederick Gedicks, a BYU law professor who joined a brief opposing Catholic Social Services.

Caught in the middle

In March 2018, a newspaper article reported Catholic teachings against same-sex marriage would prevent Catholic Social Services in Philadelphia from certifying legally gay married couples as eligible foster parents.

The story alarmed city officials and within days the City Council passed a resolution that condemned “discrimination that occurs under the guise of religious freedom” and the city stopped contracting with agencies that wouldn’t evaluate the eligibility of same-sex couples.

Two months later Catholic Social Services and two single moms who have fostered children through the agency for decades sued the city, arguing that banning religious organizations from taking part in a public program constitutes unlawful religious discrimination.

“The mayor, City Council, Department of Human Services and other city officials have targeted (Catholic Social Services) and attempted to coerce it into changing its religious practices,” they said in their petition to the Supreme Court. The agency “cannot make foster certifications inconsistent with its religious beliefs about sex and marriage.”

Catholic Social Services and the families also believe Philadelphia officials are responding to a problem that doesn’t exist.

“Philadelphia has a diverse array of foster agencies, and not a single same-sex couple approached (Catholic Social Services) about becoming a foster parent between its opening in 1917 and the start of this case in 2018,” they said in their Supreme Court petition filed by Becket, a public interest law firm that represents individuals and institutions in religious liberty cases.

Philadelphia officials argue that they aren’t targeting Catholic Social Services, which the city acknowledges is “a point of light in the city’s foster-care system,” but holding all outside contractors to the same standards to protect children and all prospective parents. City policy prohibits organizations that discriminate on the basis of sexual orientation from receiving taxpayer funds, they said.

“Excluding qualified parents based solely on their sexual orientation ... would do a disservice to children in the foster system (and) unnecessarily limit the pool of available parents,” attorneys for Philadelphia officials argued in their Supreme Court brief.

Lower courts ruled in favor of city leaders, finding no evidence they discriminated against the faith-based provider, so Catholic Social Services appealed to the Supreme Court.

Similar legal and legislative battles are playing out across the country, as the Deseret News has reported, with both sides decrying that vulnerable children are caught in the middle of the clash. Government data show the number of foster children has climbed by 40,000 between 2012 and 2016, while the number of foster homes and foster parents continues to decline.

Both sides blame the other for exacerbating the problem. LGBTQ rights groups argue that religious objectors to same-sex marriage are limiting the pool of prospective foster parents, and faith-based charities say local governments are limiting resources to address the problem by not granting exemptions to nondiscrimination policies.

Rethinking religious freedom

Central to the case is a 1990 Supreme Court decision that determined that laws and regulations don’t violate First Amendment religious protections if they apply to everyone and are enforced neutrally. Scalia authored the standard commonly referred to as simply Smith, after a man who was denied unemployment benefits after he was fired from his job for using illegal drugs in a Native American religious ceremony. The court held the state didn’t violate Smith’s constitutional rights in denying the benefits.

But Catholic Community Services contends Philadelphia officials didn’t comply with Smith because their enforcement was squarely aimed at the faith-based provider and the city has systems to offer exemptions. The lower courts disagreed.

But in its appeal to the high court, Becket not only restates how Philadelphia didn’t comply with the Smith standard but urged the justices to get rid of that precedent altogether.

“It is a big ask,” acknowledged Nick Reaves, with Becket. But he explained some of the justices, including Alito, have suggested in recent opinions that it is time to reexamine Smith.

In its petition, Catholic Social Services says Scalia’s dire predictions of “anarchy’ if religious exemptions were granted to laws and policies haven’t happened. Instead, Congress and several states passed laws in response to the Smith decision that have allowed governments to grant religious exemptions.

But in states without such laws, courts apply the Smith standard that has routinely resulted in curtailing religious exercise except in rare cases of laws directly targeting a religious practice, according to a brief filed for The Church of Jesus Christ of Latter-day Saints, the Jurisdiction of the Armed Forces and Chaplaincy of the Anglican Church in North America; Ethics & Religious Liberty Commission of the Southern Baptist Convention; Church of God in Christ Inc.; and Samaritan’s Purse.

Smith “has been a disaster for religious freedom,” the brief, prepared by the law firm Kirton McConkie, declared. “Its standard misguides courts into routinely denying constitutional protection for even the most obvious and avoidable invasions of the free exercise of religion.”

The brief recommends the court replace Smith with a “strict scrutiny” standard spelled out in the federal Religious Freedom Restoration Act that requires governments to justify imposing a “substantial burden on religion” by proving that the burden advances a compelling state interest in the least restrictive way.

“A close review of the Court’s leading free exercise decisions shows that, properly applied, the compelling interest test supplies the analytical tools to vindicate the freedom to exercise religion without preventing the government from carrying out its essential tasks,” the brief states.

But in the brief Gedicks joined with four other constitutional scholars, it contends Smith ensures “evenhandedness in the government’s treatment of religion” and that jettisoning Scalia’s precedent would open the floodgates to “religious exemptions from civic obligations of almost every conceivable kind.”

While a solidly conservative court and Alito’s and Thomas’ criticism of the 2015 same-sex marriage ruling could signal which way the court could eventually rule in the foster care case, Supreme Court expert Amy Howe cautioned in her preview of the Fulton v. Philadelphia case, the court may not tackle all the questions the case poses.

“If there are not five votes for the kind of sweeping ruling that (Catholic Social Services) seeks, the justices could once again sidestep the question, as it did in the case of the Colorado baker, by issuing a narrower ruling — for example, by holding that Smith does not apply because the city’s nondiscrimination policy is not neutral or generally applicable.