Supreme Court Tests LBGTQ Rights Against Free Exercise Claim

Steven D. Schwinn, University of Illinois Chicago Law School

The Supreme Court will hear oral arguments today in Fulton v. City of Philadelphia, the case testing whether the city's enforcement of a clause in its foster-care contracts that prohibits discrimination by sexual orientation violates Catholic Social Service's Free Exercise rights. Here's my preview, from the ABA Preview of United States Supreme Court Cases, with permission:

FACTS

The City of Philadelphia’s Department of Human Services (DHS) operates the City’s foster-care program. DHS takes legal custody of children whom courts have removed from their homes, and places the children in a foster home or facility that is appropriate to each child’s interests and needs.

In order to help operate the program, DHS contracts with private-sector social-service providers. Some of these providers serve as “Community Umbrella Agencies” (CUAs), which provide social services to foster children. Some operate congregate-care facilities, which provide group housing for children. And some operate as “Foster Family Care Agencies” (FFCAs), which conduct home studies of potential foster parents, issue certifications for families that meet state criteria, and, upon referral from DHS, place children with foster parents that the FFCAs have certified. State law delegates authority to FFCAs, so that FFCAs exercise state power when they evaluate and certify foster parents. Private agencies have no authority to place children with foster parents without an FFCA contract. Still, DHS’s standard contract says that a contracting agency “is an independent contractor,” and not “an employee or agent of the City.”

DHS contracts include a standard nondiscrimination clause. The clause says that FFCAs must comply with the City’s Fair Practices Ordinance, which prohibits discrimination based on any protected characteristic, including sexual orientation. The contracts also say that contractors “shall not discriminate” in any “public accommodations practices” on the basis of sexual orientation.

Catholic Social Services (CSS) is a faith-based social-service organization that has long contracted with DHS to provide services in the City’s foster-care program. On March 13, 2018, the Philadelphia Inquirer ran a piece titled “Two foster agencies in Philly won’t place kids with LGBTQ people.” The story reported that CSS and another social-service organization would not certify same-sex couples for foster-care placements. In the article, the Archdiocese’s spokesperson confirmed CSS’s longstanding religion-based policy against providing foster-care certification for unmarried couples and for same-sex married couples, but emphasized that CSS had received no inquiries from same-sex couples. (CSS maintains that if it received such an inquiry, it would refer the couple to another agency.) 

Two days after the story ran, the City Council passed a resolution condemning “discrimination that occurs under the guise of religious freedom.” Around the same time, the Philadelphia Commission on Human Relations (PCHR), at the request of the Mayor, sent a letter to the Auxiliary Bishop who oversees CSS. The letter asked the Bishop to answer questions about CSS’s policies, including whether “you have authority as a local affiliate/branch of a larger organiz[ation] to create or follow your own policies.” (CSS maintains that the Mayor previously said that he “could care less about the people of the Archdiocese,” called the Archbishop’s actions “not Christian,” and called on Pope Francis “to kick some ass here!”)

The Mayor also contacted DHS Commissioner Cynthia Figueroa. Figueroa met with CSS representatives “to find a mutually agreeable solution.” During the meeting, she urged CSS representatives to follow “the teachings of Pope Francis,” and told them that “times have changed,” “attitudes have changed,” and that CSS should change its policy because it was “not 100 years ago.” CSS maintained its position, however, and DHS then halted its referrals to CSS for the rest of its contractual term, through the City’s Fiscal Year 2018.

CSS’s FY 2018 FFCA contract expired on June 30, 2018. DHS repeatedly expressed its “strong desire to keep CSS as a foster care agency,” and offered CSS FFCA contracts on the same terms as other agencies. In FYs 2019 and 2020, DHS offered CSS a choice between the same contract it offered to other FFCA agencies and a “maintenance contract” to provide foster-care services for families that CSS was already supporting. CSS chose the maintenance contract. (Although CSS declined to enter into an FFCA contract, the agency nevertheless continued to contract with DHS to provide CUA and a congregate-care services.)

In May 2018, while its FY 2018 FFCA contract was still in force, CSS sued DHS. CSS argued that DHS’s move to halt referrals violated the Free Exercise Clause, the Establishment Clause, the Free Speech Clause, and the Pennsylvania Religious Freedom Protection Act. The district court denied CSS’s motion for a preliminary injunction, and the Third Circuit and the Supreme Court denied CSS’s motion for an injunction pending appeal. Fulton v. City of Philadelphia, 139 S. Ct. 49 (2018). (Justices Clarence Thomas, Samuel Alito, and Neil Gorsuch noted their dissent.) The Third Circuit affirmed the district court’s ruling. This appeal followed.

CASE ANALYSIS

The case includes three distinct issues. We’ll review them one by one.

Free Exercise Clause

Under the Free Exercise Clause, a government action that targets religion or a religious practice must be narrowly tailored, or necessary, to meet a compelling government interest. This test, “strict scrutiny,” is the most rigorous test known to constitutional law; under strict scrutiny, the challenged government action almost always fails. Church of the Lukumi Babalu Aye, Inc. v. City of Hialeah, 508 U.S. 520 (1993).

On the other hand, a government action that is generally applicable and neutral with regard to religion, but that nevertheless has an “incidental” effect on religion, must only be rationally related to a legitimate government interest. This test, “rational basis review,” is one of the more lenient tests known to constitutional law, and the challenged government action almost always passes. Employment Division v. Smith, 494 U.S. 872 (1990).

In this case, CSS argues that DHS’s nondiscrimination policy targets the agency’s religious exercise, that it is not generally applicable, and that it fails strict scrutiny. CSS claims that “[t]he City has repeatedly shifted policies,” developed post hoc rationalizations for its nondiscrimination policy, and “changed the rules in response to CSS”—all proving that the City targeted CSS’s religious exercise. Moreover, CSS contends that the actions and statements of the City Council, the Mayor, the PCHR, and DHS all reflect hostility toward CSS’s religious beliefs. CSS asserts that the City’s nondiscrimination policy is not generally applicable, because it allows for exemptions by a “Waiver/Exemption Committee” for “constitutional issues” and by “the Commissioner or the Commissioner’s designee, in his/her sole discretion.” CSS contends that the City’s exemptions undermine its own interests, and that the City does not even apply nondiscrimination to its own actions.

CSS argues that the City’s nondiscrimination policy cannot satisfy strict scrutiny. CSS says that the City’s “hostility towards CSS’s religious exercise” and the policy’s many exemptions both show that the City’s interest cannot be compelling. And it claims that the City’s categorical freeze on CSS referrals was not narrowly tailored to meet any City interest, because the move meant that CSS could not place children in already-certified homes, and because the City could instead simply require CSS to refer same-sex couples to another FFCA. (CSS maintains that it already has a policy to do this.)

(The government weighs in to support CSS on this point, and this point only. It argues that the City’s policy targets CSS’s exercise of religion and fails strict scrutiny for many of the same reasons. Notably, the government does not argue that the Court should overrule Smith. It also does not argue that the City violated CSS’s free speech.)

The City responds that its nondiscrimination policy is a neutral law of general applicability, and that it easily satisfies Smith’s rational basis review. The City starts by claiming that it has “significantly greater leeway” in directing its own employees and contractors than when it regulates private individuals. It says that this “extra power” applies with full force to this case, and that the Court should “be especially hesitant to infer anti-religious animus from stray remarks of government officials.”

The City argues that its nondiscrimination requirement is generally applicable and neutral with regard to religion. It says that every FFCA contract contains an identical nondiscrimination requirement, and (contrary to CSS’s understanding) that DHS has no authority to make exceptions and, indeed, has never done so. The City contends that the policy contains “no trace of religious hostility,” and that CSS wrongly infers hostility “from the statements of persons who played no role in the decisionmaking process and from events far removed from the relevant decisions.”

Finally, the City argues that its nondiscrimination requirement does not require CSS to do anything contrary to its religious beliefs. In particular, the City says that neither the policy nor state law requires CSS “to endorse a couple’s relationship when certifying them as qualified foster parents.”

Free Speech

CSS argues that the City compels it to support nondiscrimination in violation of its right to free speech. CSS says that the City requires CSS, as a condition of participation in the foster care system, to issue written certifications of potential foster parents that “evaluat[e] and endors[e] same-sex and unmarried cohabitating relationships.” CSS maintains that this is “private speech,” based on Commissioner Figueroa’s testimony that the City has “nothing to do with” home studies, and does not control their content. CSS claims that the City violated its free speech by revoking its contract and attempting to “leverage a program it pays for to compel speech it does not pay for.” CSS claims that the City cannot justify these violations under strict scrutiny, for the same reasons that it cannot justify its violation of the Free Exercise Clause under strict scrutiny, above.

The City counters that its nondiscrimination policy simply does not compel CSS to say anything about the validity of same-sex relationships. Instead, the City claims that the policy simply regulates CSS’s conduct—not to discriminate against foster parents based on their sexual orientation.

Overruling Smith

CSS argues that the Court should overrule Smith and its rational basis review test. CSS claims that the Court designed the Smith test to apply when “legislatures make general laws and courts apply them.” But it says that government officials “often infringe religious exercise with non-neutral, non-general laws, and courts mistakenly apply Smith anyway.” (CSS contends that this is exactly what the City and the Third Circuit, respectively, did in this case.) CSS claims that the Smith test is therefore not an administrable standard, and that none of its predictions about its administrability came true. Moreover, CSS asserts that the Smith test lacks support in the text, history, and tradition of the Free Exercise Clause. It says that courts have done much better applying a higher level of scrutiny under the Religious Freedom Restoration Act, the Religious Land Use and Institutionalized Persons Act, and similar state laws, and it argues that the Court should replace the Smith test with strict scrutiny, or at least a more rigorous test based on the “purpose and history” of the Free Exercise Clause. CSS maintains that under a proper heightened standard, the City’s move to freeze its contract would fail.

The City counters that the Court should not overrule Smith. The City says that this case is “an extremely poor vehicle to reconsider Smith,” because it involves government contracting (not direct government regulation) and because the City’s nondiscrimination policy satisfies strict scrutiny, anyway. (The City and intervenor Support Center for Child Advocates and Philadelphia Family Pride say that banning discrimination in its FFCA contracts is narrowly tailored to achieve the compelling government interests of eliminating discrimination based on sexual orientation and ensuring that children in foster care have access to all qualified families.) Moreover, it claims that the Smith test “has firm support” in the original meaning of the Constitution, and that it “has served as the predicate for three decades of precedents and legislative enactments.”

 

 

SIGNIFICANCE

This case pits a plaintiff’s right to free exercise of religion against the government’s power to ban discrimination by sexual orientation—a tension that is increasingly familiar in today’s politics and constitutional law. Under existing free-exercise law, in Smith, a plaintiff’s religious rights would almost certainly give way to a government’s categorical ban on discrimination. But if a plaintiff can demonstrate that a government’s ban is not generally applicable or neutral with regard to religion, or that a government official targeted or exhibited hostility toward the plaintiff’s religion, then a plaintiff’s free-exercise claim would almost surely prevail.

The Court last addressed this tension just three Terms ago, in Masterpiece Cakeshop, Ltd. v. Colorado Civil Rights Commission, 138 S. Ct. 1719 (2018). In that case, a baker claimed that Colorado’s ban on discrimination would require him to bake a wedding cake for a same-sex couple in violation of his right to free exercise. The Court, in a seven-to-two ruling, held that members of the Colorado Civil Rights Commission exhibited hostility toward the baker’s religion in considering his case, and that the Commission therefore violated his free-exercise rights. The Court, however, did not say whether Colorado’s anti-discrimination law would violate the baker’s religious rights without that kind of hostility, under the Smith test. (We expected to see other similar challenges like this, especially in the wake of Obergefell v. Hodges, 135 S. Ct. 2071 (2015), where the Court struck state laws that banned same-sex marriage. But the Court has not (yet) taken these cases. In fact, the Court earlier this month declined to take up the appeal of Kim Davis, the Kentucky clerk who refused to issue marriage licenses to same-sex couples because of her religious beliefs. Justices Clarence Thomas and Samuel Alito issued a strong statement on the Court’s denial of certiorari that took aim at Obergefell and elevated Davis’s religious claim. Davis v. Ermold, 2020 WL 5881537 (Oct. 5, 2020).)

Masterpiece Cakeshop and Fulton well illustrate the increasingly familiar tension between nondiscrimination by sexual orientation and free exercise. Fulton now gives the Court another shot to reckon with it.

The parties in Fulton frame at least some of their free-exercise arguments around Masterpiece Cakeshop. CSS says that the City exhibited exactly the same kind of hostility toward religion that members of the Colorado Civil Rights Commission exhibited against the baker in that case. The City, for its part, contends that its officers did not exhibit this kind of hostility, and that, in any event, those officers weren’t in the decisionmaking loop. The City also says that the Court should grant greater leeway to the City in regulating its contractors than the Court granted the Colorado Civil Rights Commission in regulating a private person (the baker).

If the Court sees Fulton through the lens of Masterpiece Cakeshop, these similarities and differences will matter. A ruling for CSS could continue the Court’s trend toward increasing free-exercise rights, while a ruling for the City could provide an important backstop to Masterpiece Cakeshop. Either way, though, if the Court sees Fulton through the lens of Masterpiece Cakeshop, it could retain the Smith test.

But if the Court also tackles the Smith issue, the case could be even more important. Smith was a hotly controversial ruling from the start, provoking legislative responses from the federal government (in the Religious Freedom Restoration Act and the Religious Land Use and Institutionalized Persons Act) and states (in “mini-RFRAs”). The case remains controversial today. Moreover, the issue comes to the Court as it has moved steadily in recent years to privilege the right to free exercise of religion. For these reasons, the issue seems well teed-up for the Court. If so, Fulton could accelerate the Court’s trend toward greater and greater religious rights, and even provide a capstone to the Court’s cases in this area by overruling Smith. At the same time, Fulton could restrict, at least to some degree, governments at all levels from enacting and enforcing generally applicable laws, like the nondiscrimination policy at issue in this case. But on the other hand, as the City points out, this may not be the right case for the Court to take such a significant step.

As to CSS’s free speech claim: don’t look for the Court to hang its hat here. The claim itself is weak; it’s overshadowed by the free-exercise issues; and the parties did not heavily brief it. Free speech may have been an obligatory adjunct to CSS’s claims (as it was in the baker’s case in Masterpiece Cakeshop), but this case is much more likely to be significant for what it’ll say about free exercise.