After Losing Adoption Discrimination Case, Catholic Agency Asks Supreme Court For “License to Discriminate”
By Arthur S. Leonard. This article will appear in the August edition of LGBT Bar NY’s LGBT Law Notes, the most comprehensive monthly publication of LGBT legal Developments here and abroad. Subscribe:
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.