New York Law School

The U.S. Supreme Court announced on February 24 that it will review a 2019 ruling by the U.S. Court of Appeals for the 3^rd Circuit, in which that court rejected 1^st Amendment claims by the Catholic Social Services agency in Philadelphia that lost its foster services contract with the City by insisting it would refuse to provide services to same-sex couples.  The unanimous appeals court decision affirmed a ruling by U.S. District Judge Petresse B. Tucker rejecting a request by the Agency for a preliminary injunction against the City.  Fulton v. City of Philadelphia, 922 F.3d 140 (3^rd Cir. 2019), petition for certiorari granted, No. 19-123, 2020 WL 871694 (February 24, 2020).

Because the Supreme Court’s last argument date of its current Term is April 29, this case won’t be argued until the Fall Term of the Court beginning in October.  The Petitioners have 45 days to file their principal brief, and then the Respondents have 30 days to file their principal brief, with the Petitioners then authorized to file a rely brief.  By the time briefing is complete, the Court will have stopped hearing arguments for this Term.

The organizational Petitioner is Catholic Social Services (CSS), an agency affiliated with the Archdiocese of Philadelphia, which has contracted with the City to perform foster care services for more than a century.  CSS was one of 30 foster care agencies that were under contract with the City when this dispute arose, of which all but a handful are religiously affiliated.  All the agencies have one-year contracts that are routinely renewed from year to year, but CSS’s contract was not renewed as a result of this dispute.

This case was sparked in March 2018 by a reporter for the Philadelphia Inquirer who was researching an article about the timely topic of whether religiously affiliated child-care agencies were recognizing and working with married same-sex couples.  The reporter called the City’s Department of Human Services to report that two foster care agencies, CSS and Bethany Christian Services, had stated that they would not certify same-sex couples to be foster parents, and that the newspaper would be reporting this in a forthcoming article.  All of the other religious agencies contacted had stated that they did work with same-sex couples.

CSS’s position, communicated to the reporters and then to City officials, was that consistent with Catholic doctrine they would certify only single people or married couples to be foster parents, and consistent with Catholic doctrine they did not recognize same-sex couples as married, even when the couples had a civil marriage under the state law.  After the article appeared on March 15, the City Council passed a resolution calling on the City Commission on Human Relations to investigate the Department of Human Services policies on contracting with social service agencies that discriminate against LGBTQ foster parents, pointing out that “the City of Philadelphia has laws in place to protect its people from discrimination that occurs under the guise of religious freedom.”  The resolution said that any agency violating DHS rules and the City’s Fair Practices Ordinance should have their contract “terminated with all deliberate speed.”

City officials tried to negotiate a way around this problem with CSS and Bethany. Ultimately, Bethany agreed to change its policy, but CSS refused.  As a result, the Department of Human Services put a “freeze” on referrals to CSS, and the City sent CSS an ultimatum: either agree not to discriminate against same-sex couples, or the freeze would continue until their contract expired and the City would not renew the contract.  The City also indicated that it was revising its foster care service contracts to make clear that agencies could not discriminate based on grounds prohibited by the City’s anti-discrimination law.

CSS decided to fight back through a lawsuit, enlisting some foster parents as co-plaintiffs, represented by the Archdiocese’s usual legal counsel joined by attorneys from the Becket Fund for Religious Liberty, a religious advocacy group that frequently litigates on these kinds of issues.

Ironically, CSS claims that it has never been approached over the past century that it has been doing this work under City contracts by any same-sex couple.  It also stated that if a same-sex couple approached CSS, they would refer the couple to another agency, and that such referrals among agencies are routine.  While the City acknowledges that agencies do refer couples to other agencies, it asserted that this would be illegal if the reason for the referral was a refusal to deal with a couple who are in a “protected class” under the City’s anti-discrimination law.

The CSS lawsuit made several claims.  They asserted that the City’s anti-discrimination ordinance, which forbids sexual orientation discrimination, did not apply to them because their agency is not a “public accommodation.”  They claimed that under the Free Exercise Clause of the First Amendment, they had a right to deny services to same-sex couples on religious grounds.  They also made a “selective enforcement” claim, asserting a violation of the Establishment Clause, claiming that they were being targeted by the City as a Catholic agency, and that the City was retaliating against them because of their religious views.  Finally, they claimed that requiring them to certify same-sex couples as qualified to be foster parents would be a form of compelled speech prohibited by the First Amendment Freedom of Speech Clause.  CSS sought a temporary restraining order or a preliminary injunction requiring the City to “unfreeze” their status as a foster care provider while the case was being litigated.

The American Civil Liberties Union (ACLU) got involved in the case as legal representative of Support Center for Child Advocates and Philadelphia Family Pride, which intervened in the case as a co-defendant with the City, and is named as a co-Respondent on the Supreme Court Petition.  ACLU attorney Leslie Cooper participated in the hearing before the 3rd Circuit together with Jane Istvan, the City’s Chief Deputy Solicitor.

District Judge Tucker rejected CSS’s demand for preliminary relief.  She found that they did not have a likelihood of winning the case, and that the City’s strong interest in enforcing its anti-discrimination policy was likely to prevail.  CSS asked the 3^rd Circuit to provide interim relief, which that court denied, and then petitioned the Supreme Court for interim relief, which that Court also denied without comment.  On April 22, 2019, the 3^rd Circuit issued an opinion affirming the refusal of the District Court to issue an injunction against the City.  The 3^rd Circuit’s three-judge panel found that CSS’s 1^st Amendment arguments were all without merit, relying heavily on the Supreme Court’s 1990 decision, Employment Division of Oregon v. Smith, 494 U.S. 872.  The 3^rd Circuit panel included two judges appointed by President Bill Clinton and one appointed by President Ronald Reagan.

In the Smith case, the Supreme Court dealt with a claim by two men who were  denied unemployment benefits after their employer fired them for flunking a drug test.  The employer had a zero-tolerance policy on drugs.  The employees said that their positive tests resulted from using peyote, a hallucinogen, during a Native American religious ceremony, arguing that denial of unemployment benefits by the government violated their right to free exercise of religion since their use of peyote should be considered constitutionally protected under the Free Exercise Clause.

Under the Supreme Court’s 1^st Amendment jurisprudence up to that time, an application of a state law that substantially burdened a person’s free exercise of religion was considered a violation of a fundamental right, which could only be upheld if the government met the burden of showing a compelling state interest and a policy narrowly tailored to advance that interest.  Writing for the Court, Justice Antonin Scalia, a devout Catholic, rejected the employees’ argument in an opinion that marked a radical change in 1^st Amendment law.  His opinion held that individuals may not assert a Free Exercise claim against a “neutral state law of general application.”  If the state law did not target religion and was applied generally, the state did not have a burden to justify it against an individual’s free exercise of religion claim.  Scalia embraced the argument that letting people claim exemptions from complying with generally applicable state laws would substantially undermine the rule of law, leaving individuals free to decide which laws they could ignore, a chaotic situation.

The Court’s opinion unleashed a storm of controversy.  Congress attempted to overrule it with bipartisan legislation called the Religious Freedom Restoration Act (RFRA), which in its first version purported to restore 1^st Amendment free exercise jurisprudence to where it was before the Court’s decision.  The Court then ruled that Congress did not have authority to overrule a constitutional decision, although Congress could enact restrictions on its own legislative power.  Congress promptly enacted a new version of RFRA, under which individuals whose free exercise is substantially burdened by the application of a federal statute or regulation can raise a statutory defense similar to the constitutional test used before Smith.  Many states adopted similar laws, including Pennsylvania.

The 3^rd Circuit’s decision on CSS’s appeal rejected a claim under the Pennsylvania Religious Freedom law, concluding that the Pennsylvania courts would not likely rule in favor of CSS’s position under the state statute.  That ruling is not part of the appeal to the Supreme Court.

Smith has remained a controversial decision, and several justices of the Supreme Court have suggested that the Court should reconsider that ruling.  In its Petition in this case, CSS asked the Court to “revisit” that case, and the Court’s grant of review includes that question.  Reconsideration of that principle – that individuals do not have a free exercise right to refuse to comply with neutral laws of general application – could create a substantial religious exemption that would be particularly harmful to the LGBTQ community in seeking protection against discrimination because of sexual orientation or gender identity.

The foster care situation in Philadelphia illustrates this point starkly.  Of the 30 foster care agencies that were contracting with the City when this case began, all but a handful were religiously affiliated.  Although only two said they would not deal with same-sex couples when they were contacted by the Philadelphia Human Rights Commission in the wake of the Inquirer’s article, it is unclear how many religiously affiliated agencies would provide the services if they thought they had a right to refuse under the 1^st Amendment.

In its ruling in this case, the 3^rd Circuit faced CSS’s argument that its treatment by the City showed “hostility to religion,” seeking to invoke the Supreme Court’s ruling in Masterpiece Cakeshop v. Colorado Civil Rights Commission, 138 S. Ct. 1719 (2018), in which the Court overturned a state ruling that a baker violated the Colorado civil rights law by refusing to make a wedding cake for a same-sex couple.  In that case, the Supreme Court reiterated that general rule from Smith but found that the Colorado Civil Rights Commission acted inconsistently in dealing with religious freedom claims and that some members of the Commission had made remarks hostile to religion, denying the baker a “neutral forum” to consider his defense to the discrimination charge.

The 3^rd Circuit rejected CSS’s argument, finding that remarks by City officials, including the Mayor, did not fall within the scope of “hostility” described in the Masterpiece decision.  “CSS’s theme devolves to this,” wrote Judge Thomas Ambro for the court.  “The City is targeting CSS because it discriminates against same-sex couples; CSS is discriminating against same-sex couples because of its religious beliefs; therefore the City is targeting CSS for its religious beliefs.  But this syllogism is as flawed as it is dangerous.  It runs directly counter to the premise of Smith that, while religious belief is always protected, religiously motivated conduct enjoys no special protections or exemption from general, neutrally applied legal requirements.” And specifically addressing CSS’s reliance on particular statements by City officials, Ambro wrote: “If all comment on religious motivated conduct by those enforcing neutral, generally applicable laws against discrimination is construed as ill will against the religious belief itself, then Smith is a dead letter, and the nation’s civil rights laws might be as well.”

The other questions put to the Supreme Court by the CSS Petition sought to get the Court’s attention by pointing out different approaches by the federal appeals courts to deciding how to determine whether the government was discriminating because of religion in its enforcement activity, and asked, more directly, “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?”

The Supreme Court already has cases scheduled for hearing this Term that could provide a vehicle to narrow or overrule Smith, and it is a bit odd that it granted review in this case instead of “holding” the Petition until after it issues its other rulings.  On the other hand, CSS also argued that the 3^rd Circuit’s decision was a misapplication of Smith, so perhaps the Court saw a reason to treat this case differently.

The 3^rd Circuit appeal attracted sixteen amicus briefs, mostly representing the views of organizations arrayed on each side of the religious freedom issue, including more liberal or progressive religious groups opposing CSS’s 1^st Amendment claims.  Eight states joined in an amicus brief filed by the Texas Attorney General supporting the CSS claim.  Seventeen states and the District of Columbia joined in an amicus brief filed by out lesbian Massachusetts Attorney General Maura Healey, siding with the City of Philadelphia.  All the major LGBTQ-rights legal organizations joined briefs supporting the City.

The groups that filed briefs in the Masterpiece Cakeshop case two years ago will flock to get their views on record in this case, the first LGBTQ-related case added to next Term’s docket.  Meanwhile, Court-watchers await rulings on three LGBTQ-related antidiscrimination cases under Title VII of the Civil Rights Act of 1964, argued before the Court on October 8, 2019.