A Catholic foster care agency has asked the US Supreme Court to overrule a federal appeals court decision rejecting its claim that it enjoys a religious freedom right to maintain a contract with the city of Philadelphia while refusing to provide services to married same-sex couples. The July 22 petition, filed by Catholic Social Services (CSS), which is operated by the Archdiocese of Philadelphia, seeks to overturn an April 22 ruling from the Third Circuit Court of Appeals.
CSS had sued the city when it was informed it would be disqualified from certifying eligible foster parents if it did not drop its discriminatory policy. The agency claims it is not covered by Philadelphia’s ordinance banning discrimination in public accommodations and that its religiously-based policy is protected by the First Amendment.
Catholic foster care and adoption services in several other cities have closed down rather than agree to drop their policies denying services to same-sex couples. CSS argues that it will suffer the same fate, since its services can only legally be provided under a contract with the city.
Citing layoffs that have already taken place at CSS due to the city’s position, the agency sought an injunction against Philadelphia enforcing its policy as the case played out, but it was turned down at every stage. When the Third Circuit denied a preliminary injunction last summer, CSS applied to the Supreme Court for injunctive relief, but that too was denied on August 30. The high court noted, however, that Justices Clarence Thomas, Samuel Alito, and Neil Gorsuch would have granted it. Now that Brett Kavanaugh has joined the court, CSS may have the four justices it needs to get its appeal heard.
In its petition to the high court, CSS claims it has never been approached by a same-sex couple seeking to be certified as prospective foster parents and that there are 30 other agencies in Philadelphia contracted to provide the same services. The agency argues that referring applicants to other agencies is a common practice, not a sign of discrimination.
The agency is making three distinct arguments. One is that it was singled out due to government hostility to its religiously-motivated policy with a requirement that foster agencies affirmatively agree to provide services to same-sex couples. Another is that the Third Circuit misapplied a 1990 Supreme Court precedent to find that the city’s policy was a “neutral law of general application” and so not subject to constitutional challenge. Finally, CSS argues, the 1990 precedent, Employment Division v. Smith, 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 refusing benefits to a worker fired for flunking a drug test. The employee, a Native American, had used peyote in a religious ceremony and claimed denying him unemployment benefits violated his First Amendment rights. The court, in an opinion by Justice Antonin Scalia, held that state laws that are neutral regarding religion and of general application can be enforced even if they incidentally burden somebody’s religious practices.
Last year, Justice Neil Gorsuch — in a concurring opinion in the case where Masterpiece Cakeshop baker Jack Phillips prevailed in his assertion that Colorado officials showed hostility toward his religious beliefs when they ruled he violated nondiscrimination law in refusing service to a gay couple (though the court did not rule on whether he had a religious exemption from that nondiscrimination law) — suggested that Smith be reconsidered. Since the Masterpiece ruling in June 2018, other petitions, including one from Sweetcakes by Melissa, an Oregon bakery, have asked the court to reconsider Smith.
So far, the high court has not committed to undertaking 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 reopening the Smith precedent.
The city of Philadelphia acted against CSS in the wake of a report in the Philadelphia Inquirer that it would not serve same-sex couples. After the City Council called for an investigation, the mayor directed officials to conduct a probe, in which religious foster care agencies were contacted about their policies. Only CSS insisted it would not provide services to same-sex couples, but would refer them to other agencies. When the city decided to end its contract with CSS, the agency and several women whom it had certified as qualified foster parents sued.
The agency’s petition to the high court is artfully fashioned to persuade it that the Third Circuit’s approach to the issue — while consistent with cases from the West Coast-based Ninth Circuit — is out of sync with the approach of several other circuit courts, and lower federal courts, as well, in deciding when a government policy is shielded from a First Amendment challenge under the 1990 Smith precedent. Persuading the Supreme Court to take a case crucially depends on showing that there is an urgent need to resolve lower court conflicts so that there is a unified approach to constitutional rights throughout the nation.
After CSS’ petition is placed on the high court’s docket, the city of Philadelphia has 30 days — subject to extension — to respond. Once all responses are in, the case will be distributed to the justices and placed on the agenda for a conference in the new term that begins October 1. It is worth noting that petitions involving the question of whether Title VII of the 1964 Civil Rights Act forbids sexual orientation or gender identity discrimination first went to the high court last summer, but extensions on responses delayed consideration through much of the past term and they are only being heard in the new term, on October 8.
CSS and the foster mothers are represented by attorneys from the Becket Fund for Religious Liberty, a conservative religiously-oriented litigation group that advocates for a broad interpretation of free exercise rights, and Philadelphia attorneys Nicholas M. Centrella and Conrad O’Brien. The headline of their press release announcing the Supreme Court petition framed the case this way: “Philly foster mothers ask Supreme Court to protect foster kids.”
The city is represented by the Philadelphia Law Department. The American Civil Liberties Union is representing Support Center for Child Advocates and Philadelphia Family Pride, who were granted intervenor status in the case and named as defendants in the CSS petition.
The Third Circuit, when it heard the case, was flooded with amicus briefs from LGBTQ rights and civil liberties groups, groups advocating for separation of church and state, religious freedom groups (on both sides of the issues), and government officials. One brief in support of CSS’s position was filed by numerous Republican members of Congress; another by attorneys general of several conservative states. The Supreme Court will undoubtedly hear from these same groups should it take up the case.