Labor & Employment Law Daily By denying contractual exception to Catholic foster agency, Philadelphia violated Free Exercise Clause
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Monday, June 21, 2021

By denying contractual exception to Catholic foster agency, Philadelphia violated Free Exercise Clause

By Brandi O. Brown, J.D.

In its contracts with foster care agencies, the city had included a mechanism for offering individual discretionary exemptions, but when it learned the church’s agency would not certify same-sex couples as foster parents, it refused to send it further referrals.

In a majority opinion penned by Chief Justice Roberts, the U.S. Supreme Court ruled that the City of Philadelphia violated the Free Exercise Clause of the First Amendment when it refused to make further referrals to Catholic Social Services after learning that the agency refused to consider prospective foster parents in same-sex marriages. The city’s standard foster care contract was not “generally applicable” because, while it required an agency to provide services without regard to sexual orientation, it permitted exceptions to the requirement at the “sole discretion” of the Commissioner. Including of a mechanism for discretionary exceptions rendered the non-discrimination provision not generally applicable. This case thus fell outside of the ambit of its Smith holding; accordingly, the Court applied strict scrutiny and concluded that the city did not offer a compelling reason why it had a particular interest in denying an exception to this agency, while making it available to others (Fulton v. City of Philadelphia, Pennsylvania, June 17, 2021, Roberts, J.).

In 2018, a newspaper reported the Archdiocese of Philadelphia’s position that Catholic Social Services (CSS), a foster care service provider, could not consider prospective foster parents in same-sex marriages. According to the CSS’s submissions to the courts, its religious views inform its work and one of those beliefs is that “marriage is a sacred bond between a man and a woman.” Based on that, it does not object to certifying gay or lesbian individuals as single foster parents. It also does not object to placing gay and lesbian children. It claimed that no same-sex couple has ever sought certification from it, but if they did, it would direct them to one of other agencies in the city.

City refuses referrals, agency sues. Thereafter, the city council called for an investigation and after investigation the city informed CSS that unless it agreed to certify same-sex couples it would no longer refer children to the agency or enter a full foster care contract with it. The city contended the agency’s refusal violated both a non-discrimination provision in its contract with the city as well as the non-discrimination requirements of the city’s Fair Practices Ordinance.

The agency sought injunctive relief on the grounds that the city’s actions violated the First Amendment’s Free Exercise and Free Speech Clauses. The district court denied relief, reasoning that both the requirement and the ordinance were neutral and generally applicable under Employment Div., Dept. of Human Resources of Ore. v. Smith and that CSS’s claim was unlikely to succeed, and the Third Circuit affirmed. The U.S. Supreme Court granted certiorari.

Falls outside of Smith. In its majority opinion, the Court held that the refusal of the city to contract with CSS for provision of foster care services unless the agency agreed to certify same-sex couples as foster parents violated the First Amendment’s free exercise clause. First, it concluded that the city’s actions burdened the agency’s religious exercise by forcing it to either curtail its mission or certify those couples in violation of its religious beliefs. This case fell outside of Smith, the Court explained, because the city burdened the agency’s religious exercise through policies that did not satisfy the threshold requirement of being neutral and generally applicable.

Not generally applicable. Although the agency invited the Court to base its opinion on evidence it believed demonstrated the city transgressed the neutrality standard, the Court found it “more straightforward” to resolve it under the general applicability rubric. A law is not generally applicable, the Court explained, if it asks the government to consider the reasons for someone’s conduct by creating a mechanism for individual exemptions. In this case, the standard foster care contract was not generally applicable because, while it required an agency to provide services without regard to their sexual orientation, it permitted exceptions to the requirement at the “sole discretion” of the Commissioner. Including of a mechanism for discretionary exceptions, the Court noted, rendered the non-discrimination provision not generally applicable.

The Court noted that the result would be the same under any level of deference, eschewing the city’s claim that greater deference should apply to its treatment of private contractors. It also found unavailing the city’s arguments regarding the applicability of the contract’s provisions. The contract as a whole, the Court concluded, contained no generally applicable non-discrimination requirement.

Not a public accommodation issue. Moreover, the Court rejected the city’s argument that the agency’s refusal to certify same-sex couples constituted an unlawful public accommodations practice. The Court explained that the Philadelphia Fair Practices Ordinance’s public accommodations provision did not apply to the agency’s actions in this case because certification as a foster parent is not readily accessible to the public. The process of becoming certified “involves a customized and selective assessment that bears little resemblance to staying in a hotel, eating at a restaurant, or riding a bus.” The district court did not account for the foster care certification’s uniquely selective nature.

No reason to reconsider Smith. Finally, the majority explained that it had no occasion to reconsider the Smith decision, as suggested in one of the concurring opinions, because the city’s actions would be examined under “the most rigorous of scrutiny” anyway. A government policy can only survive such scrutiny, the court explained, if it advances a compelling interest and is narrowly tailored to achieve that interest.

What is the question? The question, the Court explained, was whether the city had a compelling interest in denying an exception to CSS, not whether it had a compelling interest in enforcing its non-discrimination policies generally. It did “not doubt” that the city’s interest in the “equal treatment of prospective foster parents and foster children” was a “weighty one.” However, by creating a system of exceptions under the contract, the city undermined its contention that those policies could “brook no departures.” The city did not offer a compelling reason why it had a particular interest in denying an exception to this agency, while making it available to others.

Based on its conclusion that the city’s actions violated the Free Exercise Clause, the Court determined that it need not consider whether it also violated the Free Speech Clause.

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