By: Megan Coates, Staff Member, Vol. 19<\/p>\n\n\n\n
Introduction<\/strong><\/p>\n\n\n\n The Supreme Court recently heard oral argument in Fulton v. City of Philadelphia<\/em><\/a>. In this case, a Catholic foster care agency resisted the City\u2019s policy requiring agencies to certify same-sex couples as foster parents. Before reaching the Supreme Court, Fulton<\/em> was heard at the Third Circuit, where the City of Philadelphia won its case. During oral argument, a majority of the Court signaled support <\/a> for religious liberty over the anti-discrimination interest asserted by the City.<\/p>\n\n\n\n Three decades ago, in Employment Division v. Smith<\/em><\/a>, the Supreme Court held that religious beliefs do not excuse an individual from following \u201cgenerally applicable laws.\u201d Laws are considered \u201cgenerally applicable<\/a>\u201d when they apply to all regardless of religious motivations and are not aimed to a particular religious practice. In Smith<\/em>, Justice Scalia reasoned<\/a> that allowing religious exceptions to generally applicable laws \u201cwould open the prospect of constitutionally required exemptions from civic obligations of almost every conceivable kind.\u201d<\/p>\n\n\n\n Now, the Court is considering: (1) what a religious organization must prove to succeed in a free exercise claim; (2) whether to revisit its decision in Employment Division v. Smith<\/em>; and (3) whether the government violates the First Amendment by conditioning a religious agency\u2019s ability to participate in the foster care system on taking actions and making statements that directly contradict the agency\u2019s religious beliefs.<\/p>\n\n\n\n This case carries significant implications. A flurry of litigation has been at the center of the debate on balancing religious liberty interests with the harm created by discrimination against LGBT individuals. As the Court grapples with these issues, the decisions will have profound impacts on people\u2019s lives\u2014religious and secular alike. With Justice Amy Coney Barrett\u2019s confirmation to the Court, a new conservative majority could expand religious liberty, maybe even as it pertains to generally applicable laws. It remains to be seen how Justice Barrett, a former clerk<\/a> to Justice Scalia, and the other justices will balance the issues in this case.<\/p>\n\n\n\n The Facts<\/strong><\/p>\n\n\n\n The City of Philadelphia contracts with foster care agencies to find homes for children in need. Whenever there is a child in need of a home, the City will refer the child to one of the foster care agencies. Catholic Social Services (CSS) works to both evaluate homes and place children in specific homes with families. CSS sees its role<\/a> in working with families as a ministry through which they continue the work of Jesus by serving children and families.<\/p>\n\n\n\n Here, the conflict arose<\/a> when Catholic Social Services expressed that they would not certify same-sex couples as foster parents because it would violate the Church\u2019s longstanding teaching on marriage. Ultimately, the City decided it would not continue to work with CSS if the organization refused to certify same-sex couples, which the City considered a violation of its anti-discrimination laws. The City initiated an \u201cintake freeze\u201d that prohibited CSS from participating in the foster care program. As a result, CSS filed suit in district court asking for a preliminary injunction to permit CSS to continue as part of the existing foster care program. The district court denied CSS\u2019s request for an injunction, and the Third Circuit upheld the district court\u2019s decision.<\/p>\n\n\n\n The Third Circuit Decision<\/strong><\/p>\n\n\n\n The Third Circuit agreed with the district court and concluded that CSS was not entitled to an injunction, as it viewed the nondiscrimination policy as neutral and generally applicable. The Third Circuit decided that under Smith<\/em><\/a>, there was no exception from this policy for religious belief.<\/p>\n\n\n\n The Third Circuit found no hostility to religion, distinguishing this case for Lukumi<\/em><\/a> <\/em>and Masterpiece Cakeshop<\/em><\/a>. It determined that the Supreme Court\u2019s decisions in both Masterpiece Cakeshop<\/em> and Lukumi<\/em> were based on government\u2019s treating religious groups worse than secular organizations because of their religious status. The Third Circuit pointed out that in those cases, the Court pointed to specific evidence, particularly comments by legislators, that display open hostility toward religion. Here, the Third Circuit determined that CSS was not treated any worse for their religious convictions than any secular group.<\/p>\n\n\n\n Before the Supreme Court: Oral Argument<\/strong><\/p>\n\n\n\n The Supreme Court granted certiorari and heard oral argument on November 4, 2020. During oral argument, the conservative justicees signaled strong support for religious liberty\u2014Justice Alito even indicated a willingness to overrule Smith<\/em>. The Court\u2019s newest addition, Justice Amy Coney Barrett, seemed \u201cless enthusiastic<\/a>\u201d about overruling Smith, however, she did probe the City\u2019s counsel with hypotheticals<\/a> involving a Catholic hospital and a regulation requiring that hospital to perform abortions. Justice Kavanaugh expressed sympathy for both the discrimination concern and religious issue but overall seemed to land on the side of religion.<\/p>\n\n\n\n In contrast, Justices Breyer and Kagan likened LGBT discrimination to racial discrimination and rejected any suggestion that the two were meaningfully different.<\/p>\n\n\n\n The Future of Fulton<\/em> and Beyond<\/strong><\/p>\n\n\n\n Going forward, it remains unclear what the Court will decide, but it seems likely that it will deliver a victory for religious liberty. The salient question is whether the Court will overrule Smith<\/em> in the process and what the consequences will be if it does. Some individuals fear<\/a> that overruling Smith<\/em> would put virtually every state ordinance at risk of religious liberty challenges, citing the diversity of religion in the United States as evidence that chaos is inevitable. Others, however, argue that no need<\/a> exists to overrule Smith<\/em> in this case, noting that the Court could follow the logic of Masterpiece Cakeshop<\/em> and Lukumi<\/em> and rule that Philadelphia\u2019s regulation is hostile toward religion, and therefore neither neutral or generally applicable.<\/p>\n\n\n\n As shown in Masterpiece Cakeshop<\/em><\/a>, the Court seems most concerned with hostility towards religious people. In that case, the Court honed in on comments made by the Colorado Civil Rights Commission that referred to the Petitioner\u2019s beliefs as \u201cdespicable\u201d and showed open hostility to religious beliefs. As a result of those statements, the Court found the law hostile to religion.<\/p>\n\n\n\n It is highly unlikely that the Court, as favorable to religion<\/a> as it may seem to be, will overrule Smith<\/em>. Rather, the Court is more likely to find hostility exists. Legal scholar Helen Alvar\u00e9 points out that the City of Philadelphia has a contentious history with the Catholic Church, as the mayor \u201cinvited Pope Francis <\/a>to \u2018kick some ass\u2019 in the Archdiocese of Philadelphia[.]\u201d This previous hostile relationship between the Church and the City could have an impact in the Court\u2019s decision.<\/p>\n\n\n\n As it did in Masterpiece Cakeshop<\/em>, the Court will likely look to specific conversations that occurred between CSS and the City and consider the City\u2019s history with the Catholic Church. In choosing to focus on hostility, the Court could continue to send the message that animosity towards religious individuals will not be tolerated without overruling precedent\u2014which is likely an appealing option to conservative jurists. <\/p>\n","protected":false},"excerpt":{"rendered":" By: Megan Coates, Staff Member, Vol. 19 Introduction The Supreme Court recently heard oral argument in Fulton v. City of Philadelphia. In this case, a Catholic foster care agency resisted the City\u2019s policy requiring agencies to certify same-sex couples as foster parents. 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