Court to Consider Religious Freedom of Exercise, and LGBT Rights in Philadelphia-based Foster Care Case

By Emma Davies
Emma Davies is a sophomore in the College of Arts and Sciences at the University of Pennsylvania, majoring in Philosophy.

​On February 24, 2020, the Supreme Court added Fulton v. City of Philadelphia to its docket. This case, which was brought by Catholic Social Services (CSS), challenges the City Of Philadelphia’s decision to stop referring foster children to CSS for placement on the grounds that the agency does not certify same-sex couples as foster parents. The agency had lost in lower courts, but appealed their case to the Supreme Court. The ruling of this case may lay out further explanation to the types of religious discrimination claims that warrant legal remedy, alter the decision in Employment Division v. Smith, and address whether the government violates the First Amendment by making participation in the foster-care system contingent on whether an agency conducts themselves in a way that goes against their religious beliefs [1].

In March, 2018, the city of Philadelphia barred Catholic Social Services from placing children in foster homes, unless they began to consider same-sex couples. On one side, the lawyers representing Catholic Social Services argue that the city’s actions are a result of city leaders holding different personal views on marriage. They argue that this is a discriminatory policy, which endangers at-risk children and may force Catholic Social Services to close.  The CCS contends that they have the right to free exercise of religion, which entitles them to a taxpayer-funded contract to perform a government service of placing foster children, even if they are unwilling to comply with city policy [2]. On the other side, the City of Philadelphia holds that they have a right to require all of its contracted foster care agencies to accept all qualified families. The City claims that this contract prohibits discrimination against same-sex couples, such that refusal to comply permits the City to stop referrals [3].

As explained in the petition for a writ of certiorari, the written request made by the Catholic Social Services to the Supreme Court asking the Court to review the decision of the appellate court, the decision of this case may alter interpretations of Employment Division v. Smith. In Employment Division v. Smith, a landmark Supreme Court case, Justice Antonin Scalia, writing for the majority opinion, held that the First Amendment Free Exercise Clause does not “[hold] that an individual's religious beliefs excuse him from compliance with an otherwise valid law prohibiting conduct that the government is free to regulate.” In other words, laws, which do not specifically single out a specific religion, but rather are “neutral” and regulate an action that the government would otherwise rationally concern itself with, cannot be ignored by individuals or institutions on the basis that it goes against a religious belief. For example, the government prohibits murder as a matter of regard for human life, social order, etc. Therefore, a religious group that practices human sacrifice as part of a religious ceremony could not be excused from this law by claiming that they have a right to free exercise, since it is a law that applies to everyone and has a legitimate government interest [4].

If the Court decides that the Catholic Social Services has a valid claim to religious discrimination, it would alter the interpretation of Employment Division v. Smith by holding that “neutral” laws, that is, laws that do not single out a specific religious group, could still be considered an act of religious discrimination for other reasons. In this case, the ramifications of the City of Philadelphia’s policy is that it causes religious groups to conduct themselves in a way that, CCS argues, goes against their religious beliefs. Specificallly, referring foster children to same-sex couples would go against their religious beliefs that marriage is a union between a male and a female [5].

However, Employment Division v. Smith, is not the only case that the Court will be using in analyzing the issues at hand. A growing body of Supreme Court cases have emerged since Employment Division v. Smith, which address either the Free Exercise Clause, discrimination on the basis of sex and sexual orientation, or the potential collision between the two, such as Masterpiece Cakeshop Ltd. v. Colorado Civil Rights Commision, Romer v. Evans, Obergefell v. Hodges [6]. Even though the Civil Right’s Act of 1964 does not explicitly prohibit discrimination on the basis of sexual orientation, a growing body of cases, most notably Obergefell v. Hodges, have responded to growing support for sexual orientation as a protected status  [7]. If the Court follows this trajectory, then it would provide support to the claim that discrimination on the basis of sexual orientation is impermissible.

​​​​​​​The opinions and views expressed in this publication are the opinions of the designated authors and do not reflect the opinions or views of the Penn Undergraduate Law Journal, our staff, or our clients.

References
[1] Howe, Amy. “Justices to Take up Case Involving Faith-Based Adoption Agencies and Same-Sex Couples.” SCOTUSblog, 24 Feb. 2020, www.scotusblog.com/2020/02/justices-to-take-up-case-involving-faith-based-adoption-agencies-and-same-sex-couples/.
[2] Becket Staff. “Sharonell Fulton, Et Al. v. City of Philadelphia.” Becket, Becket, 26 Sept. 2019, www.becketlaw.org/case/sharonell-fulton-et-al-v-city-philadelphia/.
[3] ACLU Staff. “Fulton v. City of Philadelphia.” American Civil Liberties Union, 24 Feb. 2020, www.aclu.org/cases/fulton-v-city-philadelphia.
[4] "Employment Division, Department of Human Resources of Oregon v. Smith." Oyez,www.oyez.org/cases/1989/88-1213. Accessed 19 Mar. 2020.
[5] Becket Staff. “Sharonell Fulton, Et Al. v. City of Philadelphia.” Becket, Becket, 26 Sept. 2019, www.becketlaw.org/case/sharonell-fulton-et-al-v-city-philadelphia/.
[6] Chemerinsky, Erwin. “Not a Masterpiece: The Supreme Court's Decision in Masterpiece Cakeshop v. Colorado Civil Rights Commission.” American Bar Association, American Bar Association, 20 Oct. 2018, www.americanbar.org/groups/crsj/publications/human_rights_magazine_home/the-ongoing-challenge-to-define-free-speech/not-a-masterpiece/.
[7] History.com Editors. “Civil Rights Act of 1964.” History.com, A&E Television Networks, 4 Jan. 2010, www.history.com/topics/black-history/civil-rights-act.

Photo Credits: https://flic.kr/p/2iVg5vP by Ted Eytan