While most of the country had their eyes and ears glued to, um, something else, Youth Services Insider listened in on the oral arguments in Fulton v. City of Philadelphia, a case involving religion and foster care that was heard Tuesday by the newly recomposed Supreme Court.
The case centers on Philadelphia’s enforcement of its Fair Practices Ordinance on its contractor, Catholic Social Services (CSS), which based on religious objections refused to screen and certify same-sex couples to be foster parents. The city still contracts with CSS on other child welfare and foster care services but has severed its relationship with the organization on conducting home studies.
You can read our previous description of the case here, or check out our recent conversation with Children’s Rights attorney Christina Remlin on The Imprint Weekly Podcast. But here is a quick rundown of what was discussed during Thursday’s arguments.
There are multiple questions that the high court could choose to act on in Fulton. One is whether to revisit and possibly overturn or replace Employment Division v. Smith, a 1990 decision dealing with religious freedom guaranteed under the First Amendment that sets a bright line for local governments: that no person or entity is entitled to a pass on a neutral and generally applicable law.
That decision has made it easy for local governments to work with faith-based contractors and others without fear of myriad free exercise challenges. Lisa Soronen, executive director of the State and Local Legal Center, explained the stakes for local government in a column for SCOTUSBlog.
“If Smith is overturned, local governments will spend a lot of time and money, which they can ill-afford,” defending free-exercise claims, Soronen writes.
It is a fool’s errand to overinterpret the justices’ questions during oral arguments, but Justices Samuel Alito and Amy Coney-Barrett probed attorneys for Catholic Social Services and the Justice Department on whether revisiting Employment Division v. Smith was necessary to rule on this case.
One of the other questions discussed applies more directly to the field of child welfare, and here is the direct wording by the court:
Whether a government violates the First Amendment by conditioning a religious agency’s ability to participate in the foster care system on taking actions and making statements that directly contradict the agency’s religious beliefs?
For state or local agencies that wished to require a non-discrimination clause for all of its providers, any section that ran afoul of the religious beliefs of a faith-based contractor would not be enforceable if the court rules for CSS on this issue.
Justice Stephen Breyer queried why the city’s offer of a plan to sidestep the whole issue did not suffice for Catholic Social Services. Philadelphia had suggested the agency could simply note its objection to same-sex marriage in any case that applied to, and document its assessment of the home irrespective of that objection.
“You just put that to the side, make a note that you’re putting it to the side, and say, other than that, they’re OK or they’re not OK,” Breyer suggested to Lori Windham, attorney for the plaintiffs. “That’s all you have to do. Now, what’s the problem?”
“What they’re still being asked to do is to evaluate, assess and approve of a couple under – under state law,” Windham replied. “And in their own written report, that’s something that they have testified that they cannot do.”
Windham also asserted that CSS is a licensee, not a contractor, because the city is deciding which foster care agencies “are able to perform these services in the City of Philadelphia.”
Agreeing with that view of the relationship would “insert federal courts into contracting decisions in all 50 states and imperil government services in many spheres,” said Neil Katyal, one of former President Barack Obama’s solicitors general, who represented Philadelphia. In the child welfare world, he said, it would mean child welfare agencies “could discriminate against LGBT kids or categorically against foster parents on gender or religion.”
Windham returned frequently to the argument that the city would exclude people with certain disabilities from becoming foster parents, and Hasim Mooppan, representing the Trump administration in the case, said that Philadelphia “has tolerated racial and ethnic-based outreach to … foster parents. And then the city itself considers race and disability when placing children.”
Windham also argued that in excluding Catholic Social Services from screening foster families, Philadelphia “was trying to regulate an area that has historically been an area of religious practice, and so think that that sets this case apart.”
Justice Elana Kagan noted that governments do a lot of things now that were previously the purview of charities or religious groups.
“Does the Free Exercise Clause shrink every time the government expands its reach and begins to regulate work that has historically and traditionally been done by religious groups?” Windham replied to Kagan’s observation.
Kagan pressed Mooppan multiple times on whether the Trump administration thinks “there’s a compelling state interest to try to eradicate discrimination against gays and lesbians?”
“We haven’t taken a position on that question because the question in this case is whether the City of Philadelphia has a compelling interest,” Mooppan said. “And the City of Philadelphia does not because they have undermined that interest by recognizing a series of exceptions.”
Justices Alito and Brett Kavanaugh both seemed to admonish the city for allowing the case to reach the high court.
“If we are honest about what’s really going on here, it’s not about ensuring that same-sex couples in Philadelphia have the opportunity to be foster parents,” Alito said to Katyal. “It’s the fact that the city can’t stand the message that Catholic Social Services and the archdiocese are sending by continuing to adhere to the old-fashioned view about marriage. Isn’t that the case?”
“Absolutely not,” Katyal replied.
Kavanaugh lamented that despite the “stigmatic harm” involved in a provider refusing to screen same-sex couples for foster parenting, he thought Philadelphia was “looking for a fight and has brought that serious, controversial fight all the way to the Supreme Court” even though Catholic Social Services was willing to refer any same-sex couple to one of the city’s 30 other contracted child welfare providers.
Katyal said the city “couldn’t profoundly disagree more” with Kavanaugh’s characterization. “We certainly didn’t rush this case to the Supreme Court. Indeed, we won it in both courts below.”