The U.S. Supreme Court on Wednesday appeared inclined to rule for a Catholic social service agency that was excluded from Philadelphia鈥檚 foster-care system because the agency refuses to certify same-sex couples as foster parents.
The case of (No. 19-123) has implications for education chiefly for what the court may say on the tension between laws barring anti-LGBTQ discrimination and religious entities鈥� request for exemptions from such laws based on their sincere religious beliefs.
鈥淚t seems like this case requires us to think about the balance between two very important rights recognized by this court鈥攖he religious exercise and belief right, obviously, in the First Amendment, and the same-sex marriage right, as recognized in Obergefell,鈥� said Justice Brett M. Kavanaugh, referring to the court鈥檚 2015 decision in .
鈥淎nd it seems when those rights come into conflict, all levels of government should be careful and should often, where possible and appropriate, look for ways to accommodate both 鈥╥nterests in reasonable ways,鈥� Kavanaugh said. 鈥淭here are strong鈥攙ery strong feelings on all sides that warrant respect.鈥�
That said, Kavanaugh added that it appeared to him that the city of Philadelphia 鈥渃reated a clash, it seems, and was looking for a fight鈥� with the agency over Catholic views on same-sex marriage.
The case involves Catholic Social Services, an agency of the Roman Catholic Archdiocese of Philadelphia, that is challenging its exclusion from the city鈥檚 foster-care system.
In 2018, the city learned from a newspaper article that the Catholic agency had a policy of not certifying same-sex couples to become foster parents. CSS had never been approached by a same-sex couple, and if it had, it would have referred the couple to one of some 30 other foster-care agencies in the city, including a few that focus on the LGBTQ community. But another religious agency had refused to certify a same-sex couple, court papers say.
The city argues that the refusal violates contractual provisions barring discrimination on the basis of sexual orientation. Catholic Social Services says it is following Catholic teaching on same-sex marriage, and the city鈥檚 exclusion is a matter of religious hostility that violates its First Amendment speech and free-exercise-of-religion rights.
鈥淲hat the city is trying to do here is tell religious groups who have been doing this prior to when the city got involved we鈥檙e going to exclude you, you can no longer carry out this work unless you take actions that are contrary to your faith,鈥� Lori H. Windham, the lawyer representing CSS and three foster parents who have long worked with the agency, told the justices.
A federal appeals court ruled that the city was applying a neutral and generally applicable policy and thus upheld it under the Supreme Court鈥檚 1990 decision in . In that case, the high court cast aside a long-prevalent 鈥渟trict scrutiny鈥� test for evaluating government action that infringed the free exercise of religion guaranteed under the First Amendment.
In granting the Catholic organization鈥檚 appeal, the Supreme Court asked the parties to weigh in on whether Smith should be overruled. There appeared to be mild interest among a few justices in Wednesday鈥檚 argumentsfor reconsidering Smith, though it appeared more likely the court would rule for Catholic Social Services without having to take that step.
Hashim M. Mooppan, a counselor to the U.S. solicitor general arguing in support of CSS, said the case was relatively straightforward under Smith, but not in the way the lower courts ruled.
鈥淭he city has not acted in a generally applicable and neutral way,鈥� he said, noting that the federal government did not take a position on whether Smith should be overruled. 鈥淲e think that the record makes clear that the city has recognized myriad exceptions from its anti-discrimination provision.鈥�
These included exceptions, say, from the city鈥檚 anti-discrimination law when a prospective foster parent had a disability that meant he could not adequately care for the foster child.
The broader questions about religious liberty rights versus anti-discrimination goals kept popping up during the argument.
鈥淚f we are honest about what鈥檚 really going on here, it鈥檚 not about ensuring that same-sex couples in Philadelphia have the opportunity to be foster parents,鈥� said Justice Samuel A. Alito Jr. 鈥淚t鈥檚 the fact that the city can鈥檛 stand the message that Catholic Social Services and the Archdiocese are sending by continuing to adhere to the old-fashioned view about marriage.鈥�
Neal K. Katyal, the lawyer representing Philadelphia, disagreed with Alito鈥檚 assertion as well as with Kavanaugh鈥檚 view that the city had picked a fight over the issue.
Katyal pointed out that the city continues to contract with CSS for certain other foster care services to the tune of $26 million per year. (CSS received about $2 million per year for its work certifying foster parents, court papers says.)
鈥淲e weren鈥檛 looking for some sort of fight here,鈥� said Katyal. 鈥淭he city was torn up about it.鈥�
Katyal argued that allowing a foster-care agency to have a religious exemption based on sexual orientation will have a stigmatizing effect on LGBTQ youths and prospective foster parents.
鈥淭hat is a compelling interest,鈥� he said. 鈥淟GBT kids are an outsize number of people in the foster care population, and [such an exemption] will undermine the ability of the program to operate.鈥�
Jeffrey L. Fisher, a Stanford University law professor arguing for the intervening groups that support the city, said, 鈥淚 think what makes this feel like a hard case is that CSS is doing valuable work, it is acting based on traditional religious beliefs, and it may appear that the costs of accommodating it would not be too high.鈥�
But that overlooks that CSS is acting as a government contractor in certifying foster parents, and its claim for an exemption undermines 鈥渢he imperative that governmental services are made evenhandedly available to all citizens.鈥�
Some of the court鈥檚 more-liberal members asked repeatedly about whether a religious group could claim exemptions for other protected classes.
鈥淲hat is dangerous is the idea that a contractor with a religious belief could come in and say: 鈥楨xclude other religions. ... Exclude someone with a disability. ... Or exclude interracial couples鈥�,鈥� said Justice Sonia Sotomayor.
To a question about interracial marriage from Breyer, Mooppan said: 鈥淥n interracial marriage, this court has made clear repeatedly that there鈥檚 a particularly compelling interest in eradicating racial discrimination.鈥�
Justice Elena Kagan pressed Mooppan on whether the government has a compelling interest in eradicating discrimination against gays and lesbians. He said perhaps in the abstract, but that in this case Philadelphia had undermined its interest by granting exceptions to its anti-discrimination policy.
Justice Amy Coney Barrett asked questions about Smith, a hypothetical about whether a hospital managed by a Catholic group under a government contract could be required to perform abortions, and about the interracial marriage comparison.
鈥淚 think we would agree that there鈥檚 really not any circumstance we can think of in which racial discrimination would be permitted as a religious exemption,鈥� she told Fisher. 鈥淐an you think of any example in which ... an objection to same-sex marriage would justify an exemption? Or is it like racial discrimination?鈥�
Implications for Private Schools
Although education did not come up in the arguments, one area where this debate might be important is in the question of private religious schools that have policies of excluding LGBTQ employees or students and whether they have a right to vouchers or other public aid.
A private school in South Bend, Ind., where Barrett once served on the board hundreds of thousands of dollars in state scholarship funds despite reports of an anti-LGBTQ climate. Indiana law does not bar discrimination on the basis of sexual orientation or gender identity.
And a about a Maine program of paying private school tuition for students in towns without high schools discussed a private religious school that suggested it likely wouldn鈥檛 participate if the program were opened up to religious schools and if it was required to abide by Maine鈥檚 anti-discrimination law, which does cover sexual orientation and gender identity. (The discussion in that case, , was somewhat academic since the appeals court held that the program could not be expanded to include religious schools despite a recent U.S. Supreme Court decision in a case from Montana.)
A decision in the Philadelphia foster-care case is expected by late June.