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2nd Circuit Court of Appeals Revives Religious Adoption Agency’s Challenge to New York Anti-Discrimination Rule

Posted on: July 22nd, 2020 by Art Leonard No Comments

The U.S. Court of Appeals for the 2nd Circuit, based in New York, has revived a Syracuse religious adoption agency’s constitutional challenge to the New York Office of Children and Family Service (OCFS) regulation prohibiting discrimination because of marital status or sexual orientation by adoption agencies. New Hope insists, based on its religious principles, that it cannot provide adoption services to unmarried people or same-sex couples.  OCFS threatened to terminate New Hope’s status as an approved agency if it does not comply.  New Hope Family Services, Inc. v. Poole, 2020 WL 4118201, 2020 U.S. App. LEXIS 22630 (2nd Cir., July 21, 2020).

New Hope Family Services has been an approved adoption service provider for more than fifty years and estimates that it has placed more than 1,000 children for adoption.  Although it is not affiliated with any church or formal religious movement, it identifies as a Christian agency, requires its employees to subscribe to articles of faith, and will not, consistent with its belief that children are best served in a “Biblical” family constructed of a husband, wife and child, screen potential adoptive parents who do not conform with this model.  New Hope alleges that if single people or same-sex couples seek its services, it would refer them to another agency that is willing to provide the services.  Thus, it claims, nobody is ultimately denied the ability to adopt a child based on their marital status or sexual orientation, and it has not received inquiries from same-sex couples seeking its services.

Under New York law, only agencies “authorized” by the state may provide adoption services, which include evaluating potential adoptive parents, matching them with children needing placements, supervising placements, and preparing reports to the court that will ultimately decide whether to approve an adoption.  State law and regulations set out detailed criteria concerning who may adopt a child and the factors that an approved agency, such as New Hope, are supposed to consider in determining whether it would be in the best interest of a child to be adopted by a particular person or couple.

Although adoption was traditionally limited to married couples, over the years the legislature amended the law to widen the scope of individuals who are permitted to adopt. In 2010, the adoption law was amended to state that an “adult unmarried person, an adult married couple together, or any two unmarried adult intimate partners together may adopt another person.”  The amendment was intended to reflect court decisions that had allowed the same-sex partners of parents to adopt their children, some going the next step by allowing same-sex couples to adopt.  As of 2010, same-sex couples could not legally marry in New York, but the courts had begun to recognize same-sex marriages performed in other jurisdictions, including Canada and several states. When Governor David Paterson signed the bill into law, he stated that the law would not require any agency to change its current practices, since it was “permissive,” not mandatory.

The adoption statute authorizes OCFS to adopt regulations to implement the law.  In 2011, after the new statutory provision went into effect, OCFS adopted a regulation providing that an applicant to adopt children could not be rejected “solely on the basis of homosexuality.” OCFS sent an informational letter to the adoption agencies stating that the purpose of the regulation “is to prohibit discrimination based on sexual orientation in the adoption study assessment process,” and that “OCFS cannot contemplate any case where the issue of sexual orientation would be a legitimate basis, whether in whole or in part, to deny the application of a person to be an adoptive parent.”

Two years later, OCFS issued a new regulation which requires authorized adoption agencies to “prohibit discrimination and harassment against applicants for adoption services on the basis of race, creed, color, national origin, age, sex, sexual orientation, gender identity or expression, marital status, religion, or disability, and to take reasonable steps to prevent such discrimination or harassment by staff and volunteers, promptly investigate incidents of discrimination and harassment, and take reasonable and appropriate corrective or disciplinary action when such incidents occur.”

In 2018, OCFS undertook an audit of every adoption agency’s policies and practices.  New Hope passed the on-site audit with ease, but when their written policies were reviewed, OCFS took note of the policy of declining services to single people and same-sex couples, and advised OCFS that it needed to change its policy to comply with the non-discrimination policy.  New Hope dug in its heels, and eventually OCFS warned New Hope that it would have to close its operation if it would not comply with the non-discrimination policy.  Significantly, this did not occur as a result of anybody having been turned away or filed a complaint.

New Hope filed this lawsuit in the U.S. District Court for the Northern District of New York, claiming a violation of its constitutional rights, but the district court dismissed the lawsuit and denied New Hope’s request for a preliminary injunction to stop the state from ending their authorized status while the case was pending.  The judge, Mae D’Agostino, found that under the U.S. Supreme Court’s 1990 decision, Employment Division v. Smith, 494 U.S. 872, New Hope was not entitled to claim an exemption from compliance with the law based on its religious beliefs.  Justice Scalia’s opinion for the Court in that case said that there is no free exercise of religion exemption from complying with state laws of “general application” that are “neutral” regarding religion.

New Hope appealed to the 2nd Circuit, which reversed the district court on July 21.  The three-judge panel found, in an opinion by Circuit Judge Reena Raggi, that the complaint filed for New Hope by Alliance Defending Freedom contained sufficient factual allegations to at least raise an issue of whether New Hope had been targeted due to hostility by OCFS to its religious beliefs.  The court’s opinion notes that the adoption statute itself does not ban discrimination based on sexual orientation, but rather broadens the previous categories of individuals who are legally authorized to adopt children, leaving some question whether OCFS could adopt a non-discrimination requirement through a regulation.  Furthermore, the court noted Governor Paterson’s statement when the law was amended to allow unmarried couples to adopt that it was not intended to require any agencies to change their policies, because the statute was merely “permissive.”  The court also noted in quotations from the correspondence between OCFS and New Hope various statements that could be construed as hostile to or disapproving of New Hope’s religious beliefs.

In light of these and other factors, the court concluded that it was “premature” for the district court to dismiss the case outright.  In deciding a motion to dismiss, the trial court is supposed to treat as hypothetically true all the facts alleged by the plaintiff and to decide whether those facts, if proven, might provide the basis for a valid legal claim.  And, since the court found dismissal to be premature, it directed the trial court to reinstate the lawsuit on the active docket and to analyze whether New Hope is entitled to a preliminary injunction to allow it to carry on its operations while the case is being litigated.

The court was careful to make clear that was not deciding the merits of the case.  The opinion provides a detailed and searching discussion of the concepts of “neutral state laws” (meaning “neutral” regarding religion) and laws that are “generally applicable.”  The court noted that the Supreme Court has ruled that the rule of Employment Division v. Smith does not necessarily apply to situations where a law that looks neutral and generally applicable on its face is shown to have been motivated by government animus towards a particular group or, in the case of religion, animus towards particular religious practices.  The court also took note of the Supreme Court’s 2018 decision in Masterpiece Cakeshop, 138 S. Ct. 1719, in which it reversed a state court ruling that Masterpiece violated a public accommodations law by refusing to make a custom wedding cake for a same-sex couple.  The reversal was based on the Court’s conclusion that the state’s civil rights agency had displayed hostility to the baker’s religious views in the administrative hearing process.

Government discrimination against religious organizations was also targeted by the Supreme Court this Term when it held that the state of Montana’s scholarship program for students attending private schools could not exclude religious schools from participating, since this would be “discrimination” against religion.

The court also rejected the trial court’s analysis of New Hope’s argument that requiring it to evaluate and endorse same-sex couples as adoptive parents was a form of compelled speech.  Judge D’Agostino found that this would be “government speech,” because by authorizing New Hope to evaluate applicants the government was delegating to New Hope a governmental function.  Judge Raggi’s opinion questioned this conclusion, pointing out that New Hope was not a government contractor and was not paid by the government to undertake this activity.  Rather, it is an independent agency supported by fees for its services and charitable contributions.  New Hope has always avoided taking government money because it wanted to preserve its freedom to operate consistently with its religious beliefs.

The court also took note of the U.S. Supreme Court’s decision to review the 3rd Circuit Court of Appeals’ decision in Fulton v. City of Philadelphia, a case similar in many respects to this case.  The 3rd Circuit held that the City did not violate Catholic Social Services’ constitutional rights when it dropped that agency from participating in the City’s foster care system because of its refusal to deal with same-sex couples.  That case also relied on Employment Division v. Smith.  Judge Raggi observed that at least four justices of the Supreme Court have expressed the view in various dissenting or concurring opinions that the Court should “revisit” the holding of Smith, which was a controversial case when it was decided and which provoked Congress into passing the Religious Freedom Restoration Act, which was then imitated by many states (although not New York).  If the Supreme Court reverses the Fulton decision or modifies Employment Division v. Smith, the rules governing the New Hope case will be changed.  Judge Raggi also pointed out key distinctions between the two cases.  In Fulton, the Catholic agency was a city contractor and relied heavily on compensation from the city to perform its services, while New Hope, as noted above, is an independent operator that is “authorized” by the state to perform services but is not a contractor or funding recipient.

The case now goes back to District Judge D’Agostino to consider New Hope’s request for a preliminary injunction and to conduct discovery which may culminate in a summary judgment or a trial on the merits if the parties don’t settle the case first through some compromise.  In light the pace at which such proceedings take place, it is likely that the Supreme Court will have ruled in Fulton v. City of Philadelphia before Judge D’Agostino has to render a final decision on the merits in New Hope’s case.

Judge Raggi was appointed to the Court of Appeals by President George W. Bush.  She previously served on the District Court, having been appointed by President Ronald Reagan.

Federal Court Enjoins Michigan Policy Requiring Faith-Based Adoption Agencies to Certify Same-Sex Couples as Suitable Adoptive or Foster Parents

Posted on: September 28th, 2019 by Art Leonard No Comments

Chief U.S. District Judge Robert J. Jonker ruled that a faith-based adoption and foster care agency should not be endangered with loss of its license to function as a certified child placement agency under contract with the state of Michigan while a lawsuit proceeds challenging the state’s current interpretation of its non-discrimination law resulting from the settlement agreement between the state and some same-sex couples in a separate case.  Buck v. Gordon, 2019 U.S. Dist. LEXIS 165196, 2019 WL 4686425 (W.D. Mich., Sept. 26, 2019).

The ruling follows a complicated series of events and is based on a detailed review by the court of the systems and procedures in place for adoption and foster care in Michigan.

According to Judge Jonker’s opinion, a Michigan regulation and the federal law under which financial assistance is channeled to Michigan to support the state’s adoptive and foster-care system requires that people seeking to be certified as qualified to be adoptive or foster parents not be subjected to discrimination because of sexual orientation or gender identity, among many prohibited grounds of discrimination.

Because some of the private agencies under contract with the state to provide these services are “faith-based” agencies whose religious views would prevent them from certifying single people or same-sex couples as qualified, and the state legislature did not want to see such agencies abandon the field, the state enacted a statute in 2015 allowing faith-based agencies to refer applicants to other agencies to perform the evaluation process and issue the certifications if the agency’s religious beliefs would prevent them from being able to certify an applicant or couple.

Some same-sex couples challenged this “religious freedom” statute as violating their constitutional rights in Dumont v. Gordon, Case No. 2:17-cv-13080 (E.D. Mich., filed Sept. 20, 2017).  The state defended the statute, and St. Vincent Catholic Charities, a long-time faith-based provider of such services, was drawn into the case, because the same-sex couples had approached St. Vincent and were referred elsewhere for their home study and certification.  After out lesbian Dana Nessel was elected Attorney General, during a campaign in which she criticized the state law which, which she said was authorizing discrimination against LGBT people, she changed the state’s position, and her office negotiated a settlement under which the state undertook to enforce the anti-discrimination rules without any exception for faith-based agencies.

St. Vincent, whose contract with the state covering adoption services expires September 30, 2019, was warned that unless it dropped its policy of referring same-sex couples to other agencies, its contract might not be renewed, which would mean not only the loss of state money but the loss of its status as a contracted services provider, which meant it could no longer function in the adoption placement service.  Its contract for foster care services runs through September 30, 2021, so is not in immediate danger of non-renewal.

In this lawsuit, St. Vincent and some of the foster and adoptive parents who have worked with it in the past brought suit challenging the state’s action, seeking the protection of the statute that was challenged in the earlier case, and a declaration that any requirement for St. Vincent to drop its objection to examining and certifying same-sex prospective adoptive or foster parents would violate the 1st and 14th Amendments.  In addition to naming state officials, the lawsuit names the U.S. Secretary of Health and Human Services, as federal non-discrimination regulations are also implicated.  As a result, the lawsuit also rests on the federal Religious Freedom Restoration Act.

As Judge Jonker describes the system, although St. Vincent routinely refers same-sex couples to other agencies for certification, once an individual or couple are certified to be adoptive or foster parents, they may adopt or foster through St. Vincent.  St. Vincent has placed children with same-sex couples, and opens the various supportive services it provides to adoptive and foster families of such couples.  The only issue as to which there is disagreement between St. Vincent and the state, according to their Complaint, is the issue of evaluating the prospective parents and certifying them.

Judge Jonker concluded that in light of these facts, St. Vincent should be entitled to a preliminary injunction while the case is being litigated, with the pressing deadline of September 30 for renewal of their current contract as an adoption service provider looming just days after the injunction was issued.

The first essential test for injunctive relief is whether St. Vincent is likely to be successful in their claim of a constitutional violation.  Finding that this test was met, the judge said that this case is not covered by Supreme Court precedents holding that no religious exemption is required when a challenged law is neutral with respect to religion and is of general applicability, of which the leading case is Employment Division v. Smith, 494 U.S. 872 (1990).  Taking account of the historical background to the challenged policy here, the judge found that “the historical background, specific series of events, and statements of Defendant Nessel all point toward religious targeting.”

Reviewing the sequence of events described above, he found that “the 2018 campaign for Michigan Attorney General and General Nessel’s statements create a strong inference that the State’s real target is the religious beliefs and confessions of St. Vincent, and not discriminatory conduct.”  He based this conclusion on St. Vincent’s allegation that it “has never prevented a same-sex couple from fostering or adopting a child.”  If St. Vincent was required to accept applications from same-sex couples and carry out its evaluation, it would be put to the task of stating whether the couple should be certified to be adoptive or foster parents, a determination that it would want to make in accord with its religious principles, which would mean denying the certification.  Instead, St. Vincent makes referrals of such couples to other agencies, knowing that those agencies will certify the couples if they meet the objective criteria specified by state regulations.

Furthermore, he appointed out, under the system in Michigan, children who need an adoptive or foster placement are referred to contracted agencies through the Michigan Adoption Resource Exchange (MARE) and, he found, “St. Vincent has actually placed children though the MARE system with same-sex adoptive parents.”  Once a prospective couple has been certified, St. Vincent avows, they are treated the same as any other certified couple with regard to all its adoption and fostering placements and services.

“The State is willing to prevent St. Vincent from doing all this in the future simply because St. Vincent adheres to its sincerely held religious belief that marriage is an institution created by God to join a single man to a single woman,” he wrote.  “Because of that religious belief, St. Vincent says it cannot in good conscience review and certify an unmarried or same-sex parental application.  St. Vincent would either have to recommend denial of all such applications, no matter how much value they could provide to foster and adoptive children; or St. Vincent would have to subordinate its religious beliefs to the State-mandated orthodoxy, even though the State is not compensating them for the review services anyway.”  St. Vincent makes referrals of single folks and same-sex couples to other agencies to avoid being put into this quandary.

The court notes that until Attorney General Nessel took office, the state had been defending this practice in the prior litigation, and Nessel’s rhetoric during the campaign convinced the judge that the settlement of the Dumont lawsuit and the agreement to enforce the non-discrimination policy against all contracting agencies showed that the new policy is targeting religion even though it appears neutral on its face.

Judge Jonker determined that this is a “strict scrutiny” case because it targets religious belief, and that under this demanding test, the new policy is likely to be held unconstitutional.  He also found that this case was materially distinguishable from the Philadelphia case decided by the 3rd Circuit Court of Appeals earlier this year, Fulton v. City of Philadelphia, 922 F.3d 140 (2019), because of differences in the facts: the Catholic agency in Philadelphia was refusing to deal with same-sex couples at all, while St. Vincent refers them to other agencies for certification, and once they are certified, will place children with them and provide supportive services.

The court also determined that the balance of harms as between issuing or not issuing the injunction weighed in favor of issuing it, against both the state and the federal government, because of the possibility (remote, it would seem) that the Trump Administration would cut off funds to a state that has passed a law allowing faith-based agencies to abstain from providing some services based on their religious beliefs.  As to the public interest, the court found that it is in the interest of the public not to shut down any adoption or foster care agencies in light of the significant number of children in Michigan that need placements and the supportive services that St. Vincent provides, including to same-sex couples and their adoptive or foster children.

The court rejected the state’s argument that these issues had already been decided in Dumont  in favor of applying the non-discrimination policy to all agencies. The judge pointed out that Dumont was settled by the parties after Nessel changed the state’s position.  There was no judgment on the merits by the court, so there was no final judgment determining the underlying legal issue and no reason to find the issue res judicata.

The court’s use of the Supreme Court’s Masterpiece Cakeshop ruling in rendering this decision is noteworthy.  In Masterpiece, the Supreme Court refrained from ruling on the underlying constitutional question whether a baker has a 1st Amendment right to decline to produce custom wedding cakes for same-sex couples, instead ruling for the baker based on the Court’s detection in the record of overt hostility to religion by some of the members of the Colorado civil rights commission that was deciding that case at the administrative level.  Since then, several lower courts have focused on the Supreme Court’s “hostility to religion” language, and Judge Jonker does in this case, finding that Nessel’s “hostility to religion” expressed during her election campaign feeds into the question whether the state’s current position targets religion, even though the policy is facially neutral, applying the non-discrimination policy to all adoption and foster care services, not just faith-based ones.

Judge Jonkin prefaced his opinion with a careful statement about what was not at issue.  “This case is not about whether same-sex couples can be great parents,” he wrote.  “They can.  No one in the case contests that.  To the contrary, St. Vincent has placed children for adoption with same-sex couples certified by the State.”  To the judge, this case was about whether St. Vincent can continue to operate in a way consistent with the religious creed to which it subscribes, or whether it must violate those religious beliefs if it is to continue providing adoption and foster care services.

The Becket Fund for Religious Liberty of Washignton D.C. provided legal representation to the plaintiffs and St. Vincent.  Michigan’s Department of the Attorney General represented the state defendants, and the U.S. Justice Department represented the federal defendants.  The plaintiffs in Dumont v. Gordon, Kristy and Dana Dumont, were represented as amici by attorneys from the ACLU and pro bono counsel from Sullivan & Cromwell LLP.

Although this was just a ruling on a preliminary injunction, it signals quite clearly that Judge Jonker’s final ruling on the merits is likely to go the same way.  The State could appeal the ruling to the 6th Circuit Court of Appeals.  Judge Jonker, who is the chief judge for the Western District of Michigan, was appointed by President George W. Bush in 2007.

Catholic Foster Care Agency Seeks Supreme Court Review of Exclusion from Philadelphia Program

Posted on: July 24th, 2019 by Art Leonard No Comments

Catholic Social Services (CSS), a religious foster care agency operated by the Archdiocese of Philadelphia, has asked the U.S. Supreme Court to overrule a decision by the U.S. Court of Appeals for the 3rd Circuit, which on April 22 rejected CSS’s claim that it enjoys a constitutional religious freedom right to continue functioning as a foster care agency by contract with the City of Philadelphia while maintaining a policy that it will not provide its services to married same-sex couples seeking to be foster parents.  The decision below is Fulton v. City of Philadelphia, 922 F.3d 140 (3rd Cir. 2019).

CSS and several of its clients sued the City when the agency was told that if it would not drop its policy, it would be disqualified from certifying potential foster parents whom it deemed qualified to the Family Court for foster care placements and its contract with the City would not be renewed.  CSS insists that the City’s Fair Practices Ordinance, which prohibits discrimination because of sexual orientation by public accommodations, does not apply to it, and that it is entitled under the 1st Amendment’s Free Exercise Clause to maintain its religiously-based policy without forfeiting its longstanding role within the City’s foster care system.

The Petition filed with the Clerk of the Court on July 22 is one of a small stream of petitions the Court has received in the aftermath of its June 26, 2015, marriage equality decision, Obergefell v. Hodges, 135 S. Ct. 2584, in which the Court held that same-sex couples have a right to marry and have their marriages recognized by the states under the 14th Amendment’s Due Process and Equal Protection Clauses.   Dissenters in that 5-4 case predicted that the ruling would lead to clashes based on religious objections to same-sex marriage.  Most of those cases have involved small businesses that refuse to provide their goods or services for same-sex weddings, such as the Masterpiece Cakeshop decision from last spring, 138 S. Ct. 1719 (2018).

This new petition is one of many that may end up at the Court as a result of clashes between local governments that ban sexual orientation discrimination and government contractors who insist that they must discriminate against same-sex couples for religious reasons.  Catholic foster care and adoption services have actually closed down in several cities rather than agree to drop their policies against providing services to same-sex couples. CSS argues that it will suffer the same fate, since the services it provides – screening applicants through home studies, assisting in matching children with foster parents, and providing support financially and logistically to its foster families through funding provided by the City – can only legally be provided by an agency that has a contract with the City, and that even as its current contract plays out, the refusal of the City to accept any more of its referrals has resulted in its active roster of foster placements dropping by half in a short period of time, requiring laying off part of its staff.

Desperate to keep the program running, CSS went to federal district court seeking preliminary injunctive relief while the case is litigated, but it was turned down at every stage.  Last summer, when the 3rd Circuit denied a motion to overturn the district court’s denial of preliminary relief, CSS applied to the Supreme Court for “injunctive relief pending appeal,” which was denied on August 30, with the Court noting that Justices Clarence Thomas, Samuel Alito, and Neil Gorsuch would have granted the Application.  See 139 S. Ct. 49 (2018). That at least three justices would have provided interim relief suggests that CSS’s Petition for review may be granted, since the Court grants review on the vote of four justices, and Brett Kavanaugh, who was not on the Court last August, might provide the fourth vote.

According to its Petition, CSS dates from 1917, when the City of Philadelphia was not even involved in screening and licensing foster parents.  CSS claims that from 1917 until the start of this lawsuit, it had never been approached by a same-sex couple seeking to be certified as prospective foster parents.  CSS argues that as there are thirty different agencies in Philadelphia with City contract to provide this service, same-sex couples seeking to be foster parents have numerous alternatives and if any were to approach CSS, they would be promptly referred to another agency.  CSS argues that referrals of applicants among agencies are a common and frequent practice, not a sign of discrimination.

CSS has three different arguments seeking to attract the Court’s attention.  One is that it was singled out due to official hostility to its religiously-motivated policy and that the City’s introduction of a requirement that foster agencies affirmatively agree to provide services to same-sex couples was inappropriately adopted specifically to target CSS.  Another is that the 3rd Circuit misapplied Supreme Court precedents to find that the City’s policy was a “neutral law of general application” under the 1990 Supreme Court precedent of Employment Division v. Smith, 494 U.S. 872 (1990), and thus not subject to serious constitutional challenge.  Finally, CSS argues, the Smith precedent has given rise to confusion and disagreement among the lower federal courts and should be reconsidered by the Supreme Court.

Opponents of same-sex marriage have been urging the Court to reconsider Smith, which was a controversial decision from the outset.  In Smith, the Supreme Court rejected a challenge to the Oregon Unemployment System’s refusal to provide benefits to an employee who was discharged for flunking a drug test. The employee, a native American, had used peyote in a religious ceremony, and claimed the denial violated his 1st Amendment rights.  The Court disagreed, in an opinion by Justice Antonin Scalia, holding that state laws that are neutral regarding religion and of general application could be enforced even though they incidentally burdened somebody’s religious practices.  Last year, Justice Neil Gorsuch’s opinion, concurring in part and dissenting in part in Masterpiece Cakeshop, suggested reconsideration of Smith, and since the Masterpiece ruling, other Petitions have asked the Court to reconsider Smith, including the “Sweetcakes by Melissa” wedding cake case from Oregon.  So far, the Court has not committed itself to such reconsideration.  In the Sweetcakes case, it vacated an Oregon appellate ruling against the recalcitrant baker and sent the case back to the state court for “further consideration” in light of the Masterpiece Cakeshop ruling, but said nothing about reconsidering Smith.

The CSS lawsuit arose when a local newspaper, the Philadelphia Inquirer, published an article reporting that CSS would not provide foster care services for same-sex couples.  The article sparked a City Council resolution calling for an investigation into CSS.  Then the Mayor asked the Commission on Human Relations (CHR), which enforces the City’s Fair Practices Ordinance (FPO), and the Department of Human Services (DHS), which contracts with foster care agencies, to investigate.  The head of DHS, reacting to the article’s report about religious objections to serving same-sex couples, did not investigate the policies of the many secular foster care agencies.  She contact religious agencies, and in the end, only CSS insisted that it could not provide services to same-sex couples, but would refer them to other agencies.

After correspondence back and forth and some face to face meetings between Department and CSS officials, DHS “cut off CSS’s foster care referrals,” which meant that “no new foster children could be placed with any foster parents certified by CSS.”  DHS wrote CSS that its practice violated the FPO, and that unless it changed its practice, its annual contract with the City would not be renewed. This meant that not only would it receive no referrals, but payments would be suspended upon expiration of the current contract, and CSS could no longer continue its foster care operation.  CSS and several women who had been certified by CSS as foster parents then filed suit seeking a preliminary injunction to keep the program going, which they were denied.

CSS’s Petition is artfully fashioned to persuade the Court that the 3rd Circuit’s approach in this case, while consistent with cases from the 9th Circuit, is out of sync with the approach of several other circuit courts in deciding whether a government policy is shielded from 1st Amendment attack under Smith.  Furthermore, it emphasizes the differing approaches of lower federal courts in determining how Smith applies to the cases before them.  The Supreme Court’s interest in taking a case crucially depends on persuading the Court that there is an urgent need to resolve lower court conflicts so that there is a unified approach throughout the country to the interpretation and application of constitutional rights.

The Petition names as Respondents the City of Philadelphia, DHS, CHR, and Support Center for Child Advocates and Philadelphia Family Pride, who were defendant-intervenors in the lower courts.  Once the Clerk has placed the Petition on the Court’s docket, the respondents have thirty days to file responding briefs, although respondents frequently request and receive extensions of time, especially over the summer when the Court is not in session.  Once all responses are in, the case will be distributed to the Justices’ chambers and placed on the agenda for a conference.  The Court’s first conference for the new Term will be on October 1.

Last summer, when the Court was considering Petitions on cases involving whether Title VII of the Civil Rights Act forbids sexual orientation or gender identity discrimination, the U.S. Solicitor General received numerous extensions of time to respond to the Petitions, so those cases were not actually conferenced until the middle of the Term and review was not granted until April 22.  Those cases will be argued on October 8, the second hearing date of the Court’s new Term.

The Petitioners are represented by attorneys from The Becket Fund for Religious Liberty, a conservative religiously-oriented litigation group that advocates for broad rights of free exercise of religion, and local Philadelphia attorneys Nicholas M. Centrella and Conrad O’Brien.  Their framing of this case is reflected in the headline of their press release announcing the Petition: “Philly foster mothers ask Supreme Court to protect foster kids.”

Municipal respondents are represented by Philadelphia’s City Law Department.  Attorneys from the ACLU represented the Intervenors, who were backing up the City’s position, in the lower courts.

The 3rd Circuit was flooded with amicus briefs from religious freedom groups (on both sides of the issues), separation of church and state groups, LGBT rights and civil liberties groups, and government officials.  One brief in support of CSS’s position was filed by numerous Republican members of Congress; another by attorney generals of several conservative states.  The wide range and number of amicus briefs filed in the 3rd Circuit suggests that the Supreme Court will be hearing from many of these groups as well, which may influence the Court to conclude that the matter is sufficiently important to justify Supreme Court consideration.