The U.S. 3rd Circuit Court of Appeals refused a request by Catholic Social Services (CSS) to block enforcement of the City of Philadelphia’s requirement that the agency not discriminate against same-sex couples who seek certification to be foster parents. Fulton v. City of Philadelphia, 2019 U.S. App. LEXIS 11711, 2019 WL 1758355 (3rd Cir. 2019). The April 22 ruling by a unanimous three-judge panel, which affirmed the denial of a preliminary injunction by District Judge Petrese B. Tucker, rejected CSS’s claim that it has a First Amendment religious freedom right to discriminate against same-sex couples in performing a service for which it is paid by the City of Philadelphia. The court also rejected CSS’s claim under Pennsylvania’s religious freedom statute. Local news reports indicated that CSS will try to appeal this ruling, although they didn’t specify whether it would seek rehearing before a larger panel of the 3rd Circuit (en banc review) first or would directly petition the U.S. Supreme Court.
CSS had already tried to interest the U.S. Supreme Court in granting it temporary relief through an “emergency application,” but that Court decline to take action last August, with Justices Samuel Alito, Neil Gorsuch, and Clarence Thomas indicating that they would have granted temporary relief to CSS. See 139 S. Ct. 49. These are the justices who may be most interested in having the Court reconsider its holding in Employment Division v. Smith, 494 U.S. 892 (1990), as Gorsuch intimated in his concurring opinion in Masterpiece Cakeshop v. Colorado Civil Rights Commission, 138 S. Ct. 1719 (2018).
CSS’s policy came to light in March 2018 when a reporter from the Philadelphia inquirer informed the City’s Department of Human Services that two of its contracting agencies, CSS and Bethany Christian Services, were refusing applications from same-sex couples. These are among thirty non-governmental agencies with which the Department contracted to do the job of evaluating applications and matching up prospective foster parents with children referred to the agencies by the Department.
The Department followed up by contacting the agencies to confirm this information. The Department then advised the agencies that they would stop referring foster children to them, noting the City’s ordinance banning sexual orientation discrimination by public accommodations. Bethany backed down and agreed to stop discriminating, but CSS insisted that as a Catholic agency it has a right, consistent with its religious mission, to reject applications from same-sex couples. At the same time, CSS pointed out that it had not received any applications from same-sex couples, and argued that it should not be deemed a “public accommodation” subject to the City’s anti-discrimination ordinance. The Department considered the lack of applications in the past to be irrelevant, disagreed with CSS’s claim that it was not subject to the anti-discrimination policy, and let CSS know that its year-to-year contract with the City to handle foster placements would lapse if it would not agree to new contract language obliging CSS not to discriminate.
CSS reacted to this by filing a federal lawsuit seeking an injunction against the City, requiring it to renew the contract while allowing CSS to turn away same-sex couples, and to resume referring children in need of foster care to CSS. CSS demanded a preliminary injunction to keep the child referrals going while the case is litigated, arguing that it was financially dependent on the City’s contractual payments to keep the agency going. Concerned that the agency might not be able to function without the City money, several prospective Catholic foster parents joined CSS as co-plaintiffs in the case.
District Judge Tucker denied the preliminary injunction and CSS appealed, represented by the Becket Fund for Religious Liberty, a litigation group that provides representation to Catholics claiming religious free exercise rights.
Court of Appeals Judge Thomas Ambro’s opinion for the court treats this as a relatively easy case on the constitutional claim. Despite its religious affiliation, CSS is not a church and, under the Supreme Court’s long-standing precedent of Employment Division v. Smith, the religious views of CSS “do not entitle it to an exception” from the City’s policy against sexual orientation discrimination in the provision of services, especially those financed by a City contract. The court found that CSS had “failed to make a persuasive showing that the City targeted it for its religious beliefs, or is motivated by ill will against its religion, rather than sincere opposition to discrimination on the basis of sexual orientation.” CSS had attempted to argue that its claim should receive the same treatment the Supreme Court had accorded to Masterpiece Cakeshop. Judge Ambro carefully evaluated that claim, and pointed out that the factors relied on by the Supreme Court to find that the Colorado Civil Rights Commission’s proceeding had been tainted by anti-religious bias were not present in this case.
Although rejecting CSS’s constitutional claim was an easy call for the court, it also had to deal with the Pennsylvania Religious Freedom Protection Act (RFPA), which was passed in response to federal rulings such as Smith rejecting these sorts of constitutional free exercise claims. The RFPA, which is binding on the City’s Department of Human Services as well as its municipal civil rights agency, provides that “an agency shall not substantially burden a person’s free exercise of religion, including any burden which results from a rule of general applicability.” In common with the federal Religious Freedom Restoration Act (RFRA), however, the law says that the government may enforce its law, despite the substantial burden on free exercise, if it has a compelling interest for the law and its enforcement is the least restrictive means of satisfying that interest.
The court found that Pennsylvania courts have given this law a narrow interpretation. “Pennsylvania courts applying the RFPA scrutinize claims of religious burden to see whether the burdened activity is truly ‘fundamental to the person’s religion,’” wrote Judge Ambro. Although a particular function might flow in general from a religious mission, he continued, Pennsylvania courts would ask whether it is “an inherently religious activity as opposed to something that could be done either by a religious person or group or by a secular one.”
Pointing to this case, Ambro wrote, “Caring for vulnerable children can flow from a religious mission, but is not an intrinsically religious activity under Pennsylvania law.” A variety of agencies have contracts with the City to evaluate foster care applications and place children, some religiously-affiliated and some not. “It thus seems unlikely,” Ambro continued, “that the Pennsylvania courts would recognize a substantial burden on CSS’s exercise of religion in this case.”
Furthermore, he wrote, even if the court were to assume that there is a substantial burden, CSS still would be unlikely to prevail on its RFPA claim “because the City’s actions are the least restrictive means of furthering a compelling government interest. It is black-letter law that ‘eradicating discrimination’ is a compelling interest. And mandating compliance is the least restrictive means of pursuing that interest.”
Judge Ambro cited in support of this analysis the decision last year by the U.S. Court of Appeals for the 6th Circuit in EEOC v. R.G. & G.R. Harris Funeral Homes, Inc., 897 F.3d 518 (6th Cir. 2018), from Michigan, in which the 6th Circuit rejected the funeral home’s religious freedom claim under RFRA. The funeral home argued that being required to employ a transgender funeral director violated its RFRA rights because of its owner’s religious beliefs. The 6th Circuit held that the ban on sex discrimination in Title VII of the Civil Rights Act of 1964 provides a compelling interest to protect the funeral director, and the least restrictive way of doing that is to enforce the non-discrimination requirement. Ironically, the 3rd Circuit issued its CSS decision the same day the U.S. Supreme Court announced that it would review the 6th Circuit’s decision, although that review will focus on the question whether Title VII applies to gender identity discrimination claims, not on the RFRA issue.
The 3rd Circuit panel commented that even if CSS could show a substantial burden on its religious freedom under the state law, the City’s actions would even survive the “strict scrutiny” that could be applied under the state’s religious freedom law, and thus the plaintiffs failed on a key test for getting a preliminary injunction: showing a reasonable likelihood of success on the merits of its claim.
“The City stands on firm ground in requiring its contractors to abide by its non-discrimination policies when administering public services,” the court commented. “Under Smith, the First Amendment does not prohibit government regulation of religiously-motivated conduct so long as that regulation is not a veiled attempt to suppress disfavored religious beliefs. And while CSS may assert that the City’s actions were not driven by a sincere commitment to equality but rather by antireligious and anti-Catholic bias (and is of course able to introduce additional evidence as this case proceeds), the current record does not show religious persecution or bias. Instead it shows so far the City’s good faith in its effort to enforce its laws against discrimination.”
Judge Ambro was appointed to the 3rd Circuit by President Bill Clinton in 2000. The other members of the panel, Senior Circuit Judge Anthony Scirica and Senior Circuit Judge Marjorie Rendell, were pointed by Presidents Ronald Reagan and Bill Clinton, respectively. This litigation, among the first cases to go to a federal court of appeals testing whether a religious social services agency can be required to deal with same-sex couples under a state or local anti-discrimination law, attracted a long list of amicus briefs on both sides, including religious organizations, LGBT rights organizations, child welfare associations, and Attorneys General from other states (including New York).