By Lisa Soronen
In Fulton v. City of Philadelphia the U.S. Supreme Court will decide whether local governments may refuse to contract with foster care agencies who will not work with gay couples … and possibly much, much more.
Philadelphia requires all foster care agencies to follow its “fair practices” ordinance, which prohibits sexual orientation discrimination in public accommodations.
Philadelphia long contracted with Catholic Social Services (CSS) to place foster care children. The city stopped doing so when it discovered CSS wouldn’t work with same-sex couples.
CSS claims Philadelphia violated the First Amendment by refusing to continue contracting with it because of its religious beliefs. The 3rd Circuit ruled in favor of the city.
The Supreme Court has interpreted the First Amendment’s Free Exercise Clause to forbid “government acts specifically designed to suppress religiously motivated practices or conduct.” But, per the court in Employment Division v. Smith (1990), individuals must comply with “valid and neutral law[s] of general applicability” regardless of their religious beliefs.
CSS first argues that Philadelphia’s “fair practices” ordinance isn’t applied to it neutrally.
According to the 3rd Circuit, the test for neutrality is whether the city treated CSS “worse than it would have treated another organization that did not work with same-sex couples as foster parents but had different religious beliefs,” which the city didn’t do.
CSS points out that other federal courts of appeals have allowed free exercise plaintiffs to rely on other evidence a law isn’t neutral including that the “government issues individualized exemptions, that the law exempts secular conduct that undermines the government’s interest, or that law’s history indicates non-neutrality.”
CSS has asked, and the Supreme Court has agreed, to reconsider the court’s holding in Employment Division v. Smith. Quoting Justice Samuel Alito, CSS notes that Smith “drastically cut back on the protection provided by the Free Exercise Clause.” CSS asks the court to “revisit Smith and return to a standard that can better balance governmental interests and fundamental rights.”
CSS also claims Philadelphia is requiring it to “adopt the city’s views about same-sex marriage and to affirm these views in its evaluations of prospective foster parents,” in violation of the First Amendment Free Speech Clause.
The 3rd Circuit agreed that Philadelphia couldn’t condition contracting with CSS on it officially proclaiming support for same-sex marriage. “But to the contrary, the city is willing to work with organizations that do not approve of gay marriage, as its continued relationship with Bethany Christian, its continued relationship with CSS in its other capacities, and its willingness to resume working with CSS as a foster care agency attest.”
This case is similar to Masterpiece Cakeshop, Ltd. v. Colorado Civil Rights Commission (2018); but it raises additional issues as well.
In Masterpiece Cakeshop the owner of a cake shop, Jack Phillips, refused to create a wedding cake for a same-sex couple because of his religious beliefs. Colorado's public accommodations law, like Philadelphia’s “fair practices” ordinance, prohibits sexual orientation discrimination in public accommodations. Phillips argued he had a First Amendment free speech and free exercise right not to make the cake.
The Supreme Court ruled in a favor of Phillips, finding that the Colorado Civil Rights Commission acted with hostility toward religion because a number of commissioners made anti-religion remarks at Phillips’ hearing.
But the court failed to decide the free exercise and free speech issues that arose in Masterpiece Cakeshop, which also arise in Fulton v. City of Philadelphia.
Lisa Soronen is executive director of the State and Local Legal Center and a regular contributor to the NCSL Blog on judicial issues.