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Written By: Savannah Pelfrey Acheson
Research and Writing Editor, American Journal of Trial Advocacy
The U.S. Supreme Court recently announced that November 4, 2020 would be the date for oral arguments to begin on whether a faith-based foster care agency, that is tax-payer funded, can reject same-sex couples as foster-care parents.[i] This issue arises from Fulton v. City of Philadelphia,[ii] where Catholic Social Services refused to appoint same-sex couples as foster parents.[iii] Catholic Social Services is a nonprofit organization, affiliated with the Catholic Church that provides foster care services in Philadelphia.[iv]
The Catholic foster agency was private when it was originally founded but is now regulated by both the Commonwealth of Pennsylvania and the City of Philadelphia and therefore must follow their ordinances.[v] The guideline at issue was a condition prohibiting the Catholic agency from discriminating due to race, color, religion, national origin and sexual orientation in public accommodations.[vi] When Catholic Social Services refused to recognize same-sex couples as foster parents because it was inconsistent with their religious views, the City suspended their contract due to a lack of compliance with their sexual orientation discrimination policy.[vii]
The Catholic Social Services responded by filing suit against the City of Philadelphia, asserting violations of their First Amendment Free Exercise, Establishment, and Free Speech Clauses, as well as violations under the Pennsylvania Religious Freedom Protection Act.[viii] Subsequently, the U.S. Court of Appeals for the Third Circuit upheld the City of Philadelphia’s decision to suspend referrals to the Catholic agency[ix] The court reasoned that because the City of Philadelphia’s ordinance was neutral and generally applicable, it did not violate the Catholic Social Service’s First Amendment rights.[x]
The Third Circuit also upheld the ruling based on past precedent established in 1990 in Employment Division v. Smith.[xi] In Employment, two Native Americans participated in a religious ceremony involving peyote and were later discharged by their employer, a drug rehabilitation center.[xii] The employees were later denied unemployment benefits because they were discharged due to misconduct. The Supreme Court held that the Free Exercise Clause permits the State to prohibit sacramental peyote use and thus can deny unemployment benefits to persons discharged for such use.[xiii] The Supreme Court will be taking the Third Circuit’s precedent use of Employment into consideration on November 4th.
After the ruling in Fulton, concerns were raised over the collateral damage that could ensue to both religious organizations and LGTBQ rights. In January 2019, the Trump Administration voiced its opinion in a legal brief by former U.S. Solicitor General Noel Francisco, arguing the City of Philadelphia “‘impermissibly discriminated against religious exercise’ by requiring Catholic Social Services to abide by its contract.”[xiv] After the Supreme Court granted Catholic Social Services’ Petition for writ of certiorari on February 24, 2020, interest in the case spread due to the severity of the First Amendment and LGTBQ foster and adoption rights at stake. Notably, the U.S. Solicitor General Jeffrey Wall formally appealed before the Supreme Court for the U.S. Government to have time to participate in the oral arguments on November 4th.[xv] The Court has not yet responded to this request but it is likely the Solicitor General will be allowed to participate because of the federal implications of the case.[xvi] The American Bar Association has also participated by filing an amicus brief in August asking the Court to affirm the Third Circuit’s holding in support of Philadelphia.[xvii] The ABA warned in its brief that if the Court held in favor of Catholic Social Services it “could begin a slippery legal slope where a faith-based contractor, citing religious principles, could exempt itself from other non-discrimination policies when contracting to perform public services.”[xviii]
Depending on the holding in this case, non-discrimination policies and laws across the country could feel the effects of Fulton by being undermined by religious exemptions. On the other hand, if the Court holds in favor of the City of Philadelphia, the First Amendment right to religious freedom takes a back-seat to contractual provisions that violate individual’s religious views. Regardless of how the Court decides, the effects of Fulton will be felt.
[i] Chris Johnson, Supreme Court Sets Nov. 4 to hear if Catholic Agency can reject LGBTQ parents, Washington blade (Aug. 19, 2020, 3:52 PM), https://www.washingtonblade.com/2020/08/19/supreme-court-sets-nov-4-to-hear-if-adoption-agency-can-reject-lgbtq-parents/; See also Amy Howe, Justices to take up case involving faith-based adoption agencies and same-sex couples, SCOTUSblog (Feb. 24, 2020, 3:33 PM), https://www.scotusblog.com/2020/02/justices-to-take-up-case-involving-faith-based-adoption-agencies-and-same-sex-couples/ (“[T]hey asked the justices to weigh in on three questions: what kind of showing must plaintiffs make to succeed on this kind of religious discrimination claim; whether the Supreme Court should reconsider its 1990 decision in Employment Division v. Smith, holding that the government can enforce law that burden religious beliefs or practices as long as the laws are ‘neutral’ or ‘generally applicable’; and whether the government violates the First amendment when it makes participation by a religious social-services agency in the foster-care system on actions and statements by the agency that conflict with the agency’s religious beliefs.”).
[ii] 922 F.3d 140 (3d Cir. 2019).
[iii] Fulton, 922, F.3d at 148.
[vi] Id. at 149.
[viii] Id. at 146.
[ix] Id. at 147.
[x] Id. at 147, 165.
[xi] 110 S.Ct. 1595 (1990).
[xii] Employment, 110 S.Ct. at 1597.
[xiii] Id. at1597-98.
[xiv] Johnson, supra note 1.
[xv] Johnson, supra note 1.
[xvii] ABA supports anti-bias policy in faith-based adoption case, American Bar Association (August 31, 2020), https://www.americanbar.org/news/abanews/aba-news-archives/2020/08/aba-supports-anti-bias/.