FOCUS: Carefully Building a Fortress or Kicking a Can Down the Road

The Supreme Court’s Decision to Protect Philadelphia’s Catholic Social Services Right to Place Children in Foster and Adoption Care

The Supreme Court unanimous ruled that the city of Philadelphia’s banning Catholic Social Services from placing children in foster and adopted homes ran afoul of the Constitution. The city’s decision to terminate its contract with the group over its objections to the Church’s stance on family life brought to the fore one of many emerging legal clashes between progressives’ efforts to banish opposition to their social values from the public square and America’s historic promise of religious toleration.

The court’s ruling in favor of the Catholic agency (CSS) and two foster mothers who brought the suit scores an important victory for religious traditionalists and further cements the Roberts court’s legacy of robust protections for the faithful, a message fortified by the decision’s endorsement by all the justices.

Yet, the decision got a mixed reception from religious liberty advocates, some of whom grumbled that the court had reached its decision on narrow grounds, saying that since the city had an option of granting CSS and exemption, it was obligated to do so. The disappointment was rooted in the justice’s failure to do what many religious groups had recommended, overturning Smith, a 1990 ruling that has proved a severe handicap for religious liberty. This sentiment was expressed by Justice Samuel Alito in a 77 page concurrence regretting that the court had stopped short of abandoning the controversial decision. Perhaps telling is the fact that the ACLU (which helped argue the case for Philadelphia) and other progressive voices highlighted the court’s specificity in its ruling as a partial victory for their interests.

The case, known as Fulton v. City of Philadelphia, began in 2018 when a church spokesman said in response to a question about CSS’ policies that it would only place needy children in the homes of conventional families. Without any incident having occurred that ran afoul of the Philadelphia’s “anti-discrimination” laws, the city announced that it would no longer be doing business with the agency which has contracted with it for over 50 years. (Philadelphia’s archdiocese has been helping children in need of homes in various capacities dating back to 1798).

At a meeting held between CSS and the city’s Commission on Human Relations, the board’s commissioner remarked that “things have changed since 100 years ago,” and expressed disappointment that the church had not altered in its moral positions.

Around the same time, the city council passed a resolution to look into practices of other faith-based social service agencies in search of others violating its “progressive” policies.

Months later, CSS filed a lawsuit together with the two foster mothers (one of whom, Sharonell Fulton, is the name the case bears) asking to allow religious groups to continue their operations in the city, saying their exclusion was based on anti-faith bias. Their claims were denied by lower courts which ruled that Philadelphia cleared the bar of religious discrimination since the policy in question was neutral and did not visibly targeted any given group.

Every member of the nation’s highest court felt otherwise.

“[I]t is plain that the City’s actions have burdened CSS’s religious exercise by putting it to the choice of curtailing its mission or approving relationships inconsistent with its beliefs,” wrote Chief Justice John Roberts in the court’s opinion. “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 refusal of Philadelphia to contract with CSS for the provision of foster care services unless it agrees to certify [certain nontraditional applicants] as foster parents cannot survive strict scrutiny, and violates the First Amendment.”

Key to the court’s decision was that since Philadelphia has a system of exemptions to its non-discrimination laws in place, it cannot justify denying CSS accommodation based on its objections to its religious tenets.

Even given the case-specific nature of the ruling, it could have ramifications beyond Philadelphia as left leaning state and local governments have been working to chase religious groups out of child placement (with a large measure of success) for quite a while.

In 2006, Catholic Charities of Boston was cut loose by Massachusetts over its refusal to sign on to a policy statement that violated the group’s beliefs. Since then, Washington DC, San Francisco, the state of Illinois, and several other states and cities have taken similar actions.

Will Haun, an attorney for Becket, the law firm that argued on behalf of CSS and the mothers, unreservedly welcomed the ruling and pushed back against those characterizing it as “narrow.”

“I would call it a resounding endorsement and its unanimity shows how committed the court is to bringing the First Amendment to bear in preserving a pluralistic society,” he told Hamodia.

A Narrow Ruling?

Those celebrating the ruling were additionally heartened by the time it spent, noting the valuable role CSS and other faith-based providers has played in helping needy children and that it pushed back against an argument used by progressives that granting exemptions to believers limits the field of eligible homes to serve youth in crisis. Noting that over 20 other agencies exist in Philadelphia that do not share CSS’ beliefs also place children in foster and adoptive homes, the court said that accommodating the church’s organization would only bring more parents into the mix.

Rabbi Abba Cohen, Vice President for Government Affairs for Agudath Israel of America, one of several Jewish organizations joining briefs on behalf of CSS, said that the court’s dedication to the primacy of religious freedom is the rulings most valuable message.

“You can say that this ruling is narrow and that there are ways for the city to get around it. In one sense it is narrow, but it is very broad and loud in saying how much deference has to be given to traditional religious group’s rights and freedoms to operate according to their beliefs,” he told Hamodia. “There is a growing feeling in much of society that rights for religious groups are not only unimportant but that they are archaic and cruel. This opinion gives no deference at all to that mindset and says that if you are going to work on expanding other civil rights, you can’t relegate religious rights to the dustbin.”

The Road Not Taken

Unsurprisingly, Philadelphia’s city solicitor, Diana Cortes, bemoaned the ruling calling it a “disappointing setback for foster care youth and the foster parents,” but was heartened by its limited scope.

“The Court has usurped the City’s judgment that a non-discrimination policy is in the best interests of the children in its care, with disturbing consequences for other government programs and services. At the same time, the city is gratified that the Supreme Court did not, as the plaintiffs sought, radically change existing constitutional law to adopt a standard that would force court-ordered religious exemptions from civic obligations in every arena.”

Had three of the justices had their way, Mrs. Cortes would have been less gratified with the result. Justice Alito, joined by Justices Neil Gorsuch and Clarence Thomas, wrote a separate opinion that concurred with the majority’s conclusion but was scathing of the court’s failure to overturn Smith.

“This decision might as well be written on the dissolving paper sold in magic shops. The City has been adamant about pressuring CSS to give in, and if the City wants to get around today’s decision, it can simply eliminate the never-used exemption power. If it does that, then, voilà, today’s decision will vanish—and the parties will be back where they started,” he wrote. “What is the point of going around in this circle?”

Justice Alito contends that not only can Philadelphia skirt the court’s ruling by eliminating its existing exemptions, but that the narrowness of the ruling leaves similar issues in other cities unaddressed.

In 1990, Employment Division v. Smith established a standard by which no law would be seen as a violation of the right to free exercise of religion if the statute was neutral and did not target a specific group.

In response to the decision, Congress passed the 1993 Religious Freedom Restoration Act (RFRA), which placed the burden on government to ensure that laws did not interfere with religious observance. Yet the law only applies federally, leaving local governments a freer hand in enforcing laws that could severely restrict religious practice in certain circumstances.

Smith was authored by the late Justice Antonin Scalia and joined by the court’s conservative justices close to two decades before clashes between progressive values and traditional religion were a regular part of American jurisprudence. Since then, most conservatives have come to regret the decision, searching for a moment to reform or eliminate it.

Jewish advocacy voices have been among those emphasizing that Smith has posed increased dangers to minority religious groups with practices that are less well known or accepted among law makers.

The point was not lost on Justice Alito who wrote that under Smith bans on kosher slaughter, religious circumcision, and head coverings in public places could all pass muster.

A separate opinion by Justice Amy Coney Barrett, joined by Justice Brett Kavanagh in full and by Justice Stephen Breyer in part, endorsed overturning Smith in theory but said that the time was not yet ripe, as the lack of a clear standard to replace it made doing so imprudent.

Justice Roberts’ opinion neither attacks nor defends the 1990 ruling, saying simply that the court “need not revisit that decision here” as Philadelphia’s moves were unconstitutional even according to Smith’s standard since it “has burdened the religious exercise of CSS through policies that do not meet the requirement of being neutral and generally applicable.”

A Deal?

While the Supreme Court remains one of American government’s last leak-proof institutions and no one besides the nine justices is privy to their post-case conferences, speculation abounded as to how Justice Roberts, with his penchant for consensus building and protecting the court from accusations of partisanship, maneuvered the ruling that emerged. While most expected CSS to emerge victorious, few thought arch-liberal Justice Sonia Sotomayor would back their claims. If taken at their word, failure to overturn Smith might be rooted in Justices Barrett and Kavanagh not seeing Fulton as the right moment to do so. However, some observers suspected that more lay between the lines of the written opinions.

“Barrett’s concurrence is quite a puzzle,” Michael (Avi) Helfand, a professor at Pepperdine University’s School of Law told Hamodia. “It’s odd to say that in order to figure out a new standard you need to have an answer for ever question that might arise in the future.”

For those suspecting that there were indeed at least five justices ready to scrap Smith, some posited that holding back from doing so was the bargaining chip for Justice Sotomayor’s signature. Some of those whispering theories also pointed to the fact that the length and level of detail of Justice Alito’s concurrence reads more like a piece intended to be the court’s opinion.

“The court wants to find ways to protect religious liberty and have been able to nudge the doctrine over time to show that it can be protective under the present boundaries,” said Professor Helfand. “If you look at it that way, the benefits of blowing up the paradigm are not as great as you think. So that leads them to a cost benefit analysis of how much political legitimacy do they want to put on the line?”

A Delicate Balance

While many religious liberty advocates were disappointed with Smith being left in place, the advantages of a unanimous message that religious liberty would be protected which also managed to head off furious blowback from the left was recognized.

“Both wings of the court coming down on the side of protecting religious rights gives this ruling greater credibility and integrity,” said Rabbi Cohen. He added that the opinion would give some potential litigants and municipalities set on targeting religious groups pause, realizing that their cases are unlikely to ultimately succeed and risked eliciting stronger precedential ammunition for traditionalists. Rabbi Cohen also added that the ruling could affect Congressional Democrats’ thinking about the Equality Act, which as presently written goes out of its way to say that the progressive values it is aimed at protecting will trump religious liberty, and that RFRA will not be applicable.

Whatever benefits the court’s minimalist approach might have, it leaves many similar issues unresolved.

This point was plainly demonstrated by the fact that Jack Phillips, a devout Christian baker whose right to refuse his services for an event that he objected to on moral grounds was supported by the court on even narrower grounds in 2018, was ruled against by a Colorado district court only last week. His case and those of many other religious groups and individuals could easily find their way back to the Supreme Court as long as those intent on pursuing litigation and legal constrictions against them are dedicated to finding ways to take advantage of whatever roads the justices leave open.

“You can say that these rulings are safer, but safer for who-not for the parties. How will we feel tomorrow if as Alito suggests, Philadelphia changes its laws and we end up with the same case again,” said Professor Helfand.

Rabbi Cohen said that given the challenges Smith has caused to religious liberty over the past 30 years, he did not think that other considerations could justify keeping its standard in place.

“Smith has been so detrimental both in the letter and practice of free exercise that the earliest opportunity to overturn it should be taken advantage of,” he said.

Still, given the polarized nature of present American political life, Becket’s Mr. Haun was optimistic that the court’s approach was a prudent way of sending a message to progressive municipalities to respect religious freedoms, but that at the same time minimized stoking the flames of the nation’s culture war.

“I think it’s common sense to address these issue case by case and to take into account the particulars of each situation. The fact the Philadelphia couldn’t justify what it had done even under Smith shows how far afield they were from the Constitution,” he said. “The court is putting together a body of religious liberty case law reflecting the best of our traditions of accommodation and building it with wide agreement across the court.”

Mr. Huan added that while the justices did not take the present opportunity to undo Smith, that given the five voices questioning its viability that the standard it created was “not long for this world.”