July-August 2021 Church & State Magazine | Cover Story

Advocates for church-state separation, LGBTQ equality and child welfare geared up for the worst as they awaited the U.S. Supreme Court’s decision in Fulton v. City of Philadelphia.

Fears were high that the court’s new ultra-conservative majority – solidified with the addition of Justice Amy Coney Barrett just days before the case was argued in November – could do extensive damage to our country’s fundamental principles of freedom and equality.

When the decision came down on June 17, it was bad – but not as bad as it could have been. The court ruled that Philadelphia acted improperly in refusing to give a faith-based foster care agency an exemption from non­discrimination provisions in a city contract that prohibit turning away LGBTQ parents. But the court’s decision was limited to the particular features of Philadelphia’s contract and did not create an across-the-board license for foster care agencies, social-service providers and others to discriminate in the name of religion.

“Today, the Supreme Court decided that Philadelphia had to allow Catholic Social Services to exclude LGBTQ families from its publicly funded foster care program,” AU President and CEO Rachel Laser told the press. “But the narrow decision, which turned on the specific facts of the case, means that religious extremists did not get the sweeping free pass they were seeking to discriminate wherever and however they want.

“Significantly, the court declined to rewrite the First Amendment to grant a broad license to discriminate in the name of religion,” Laser added. “The court also acknowledged the importance of non-discrimination laws and specifically respected the dignity of LGBTQ people.”

The worst-case-scenario outcomes were a possibility given that the foster care agency and its attorneys at the Religious Right legal group Becket had asked the court to overturn longstanding church-state law.

In the majority opinion written by Chief Justice John G. Roberts Jr. and joined in full by Justices Stephen G. Breyer, Elena Kagan, Sonia M. Soto­mayor, Brett M. Kavanaugh and Bar­rett, the court opted to focus its decision narrowly on the specifics of Philadelphia’s nondiscrimination pol­i­cies. Specifically, the court’s ruling hinged on two aspects:

• Because the non-discrimination provision in the city’s foster care contracts gives the Commissioner of Phil­adelphia’s Department of Human Services “sole discretion” to grant ex­­emptions, the court found that declining to give an exemption to an agency that said its religious beliefs were burdened by the requirement violated the agency’s religious freedom. The fact that the commissioner had never granted, and had no plans to grant, any exemptions didn’t matter. In the court’s view, the refusal to grant a religious exemption when the contract gave space for one meant that the city was not complying with the Constitution’s requirement of neutrality in the treatment of religion.

• The court determined that foster-care agencies are not covered by a Philadelphia ordinance that prohibits businesses and other public accommodations from discriminating on the basis of sexual orientation. This ruling was based on the particular language of the ordinance. Public-accommodations laws of other states and localities may have different language that includes foster-care services.

The court majority was further swayed by the fact that no same-sex couple was known to have applied to foster through Catholic Social Services (CSS), and therefore none were turned away. If an LGBTQ couple did apply, the agency has said it would refer the prospective parents to one of several other providers that contract with Philadelphia and don’t discriminate against LGBTQ people.

“Once properly narrowed, the City’s asserted interests are insufficient,” Roberts wrote. “Maximizing the number of foster families and minimizing liability are important goals, but the City fails to show that granting CSS an exception will put those goals at risk.

“The refusal of Philadelphia to contract with CSS for the provision of foster care services unless it agrees to certify same-sex couples as foster parents cannot survive strict scrutiny, and violates the First Amendment,” Roberts concluded.

The decision has been billed as unanimous since all nine justices either joined Roberts’ opinion or concurred with the outcome. But reading through the three concurrences written by Barrett, Samuel A. Alito and Neil M. Gorsuch, it’s clear that the court is far from unanimous in how to handle the looming issue of whether and when religious freedom can broadly be used to justify discrimination.

In particular, Alito, Gorsuch and Clarence M. Thomas chastised the majority for issuing such a narrow opinion and failing to take the opportunity to overturn a 1990 case, Employment Division v. Smith. In that decision, written by the late Justice Antonin Scalia, the court said that only laws that are not “neutrally and generally applicable” are subjected to “strict scrutiny,” the court’s most exacting standard.

As Yale law student and AU Legal Intern Chelsea Thomeer explained on AU’s “Wall of Separation” blog, Smith said that “if a law applies to everyone in an equal and unbiased manner, it can stand, even if it happens to impose an extra burden on members of a particular religious group. But if a law is not neutral or generally applicable, it is subject to ‘strict scrutiny’ and can only be upheld if it advances ‘interests of the highest order’ and ‘is narrowly tailored to achieve those interests.’”

Alito objects to what he views as the “severe holding” in Smith. In his concurrence, which was joined by Thomas and Gorsuch and was five times longer than the majority’s opinion in Fulton, Alito wrote that he would make it much easier for religious objectors to get exemptions from nondiscrimination and other laws. In sum, Alito disagrees with the “do no harm” principle of religious freedom that Americans United and many others subscribe to – that we are all free to live and believe as we choose, as long as we don’t harm others.

“The key point for present purposes is that the text of the Free Exercise Clause gives a specific group of people (those who wish to engage in the ‘exercise of religion’) the right to do so without hindrance,” Alito wrote. “The language of the Clause does not tie this right to the treatment of persons not in this group.”

Alito criticized the Fulton opinion as “a wisp of a decision that leaves religious liberty in a confused and vulnerable state.” Gorsuch, writing separately in a concurrence joined by Alito and Thomas, said the majority used “a dizzying series of maneuvers” to reach its narrow ruling in Fulton.

Smith committed a constitutional error,” Gorsuch concluded. “Only we can fix it. Dodging the question today guarantees it will recur tomorrow. These cases will keep coming until the Court musters the fortitude to supply an answer. Respectfully, it should have done so today.”

Although Americans United would advocate for a very different outcome than Alito, Gorsuch, Thomas and other conservatives on the court on whether broad religious exemptions that harm others should be granted, everyone can agree on one point – this issue wasn’t resolved in Fulton, and it will keep coming up in the courts.

Americans United continues to litigate two cases involving people who were rejected because they couldn’t pass the religious tests of taxpayer-funded foster care agencies. In South Carolina, Aimee Maddonna, a Catho­lic mother of three, was turned away by the evangelical Protestant Miracle Hill Ministries because Maddonna is the “wrong” religion. And in Texas, AU and Lambda Legal are representing Fatma Marouf and Bryn Esplin, a married, same-sex couple turned away by a Catholic agency that finds foster homes for refugee children on be­half of the federal government. Marouf and Esplin were rejected because they don’t “mirror the Holy family” as the agency requires.

And there are other cases involving religious exemptions outside the realm of foster care that could soon end up before the Supreme Court. Becket, the legal group behind Fulton, asked the court to overturn the Smith standard in another case: Ricks v. Idaho Contractors Board, a case involving a construction contractor who has religious objections to using his Social Security number to register with the state. (The high court declined to hear the case.) 

AU’s Rachel Laser, speaking at a virtual rally the evening after Fulton was decided, noted that this issue is bound to resurface at the high court.

“Let’s be crystal clear: Our opposition – religious extremists – won’t stop at today’s decision,” Laser said. “Because they imagine a world without church-state separation. Where our laws give them a special right to get exemptions from decades of civil rights laws so they can discriminate against anyone who doesn’t pass their religious litmus test.

“Religious extremists and their allies on the bench and in the legislatures have big plans to force all of us to live by their beliefs. But our laws must not allow anyone to use their religious beliefs to harm others,” Laser continued. “That’s why Americans United will continue to fight in state legislatures, in Congress, in the courts and alongside all of you for freedom without favor and equality without exception.”