ContractsProf Blog

Editor: Jeremy Telman
Oklahoma City University
School of Law

Monday, July 5, 2021

The Other Shadow Docket: Hidden Contracts Issues in Fulton v. Philly

Jamal_greeneIf you want a readable explanation for why so much of our constitutional jurisprudence makes no sense, I highly recommend Jamal Greene's How Rights Went Wrong.  One of Professor Greene's key points is that our jurisprudence elevates certain rights as "fundamental," and courts protect those rights zealously through heightened scrutiny.  Other rights, since 1937 or thereabouts, have been left nearly entirely unprotected.  Greene illustrates the phenomenon and the damage it has done to our social fabric with myriad examples, but he did not discuss Fulton v. City of Philadelphia, perhaps because it was decided after his book was published.

Philadelphia's Department of Human Services  (DHS) takes custody of children who cannot remain in their homes.  DHS then contracts with private entities, including Catholic Social Services (CSS) to place those children in foster homes.  The first step of placement is certifying the foster family as eligible to receive foster children.  Because CSS believes that “marriage is a sacred bond between a man and a woman," it announced in 2018 that it would refuse to certify unmarried couples or same-sex couples as foster parents. DHS responded by announcing that it would no longer contract with CSS, citing a non-discrimination provision in CSS's contract with the City, as well as the non-discrimination requirements of the city's Fair Practices Ordinance.  CSS sued, alleging that Philadelphia's refusal to continue to partner with CSS violated its Free Exercise rights.

Fulton is an important Free Exercise case.  Because the Court cares deeply about freedom of religious exercise and very little about freedom of contract -- at least as a constitutionally protected right-- there has been very little discussion of the  contract at the heart of the controversy.  Rather, the issue was whether the contract's non-discrimination provision is a neutral law of general applicability under Employment Division v. Smith, in which case CSS's claim was unlikely to succeed.

How RightsThis is where Jamal Greene's ideas come into play, and apologies to Professor Greene if I mangle his approach.  Our courts engage in rights absolutism.  CSS claims that its beliefs require that it not endorse same-sex marriage.  It also claims that even certifying same-sex foster couples would be an impermissible endorsement.  Somehow, single gays and lesbians can serve as foster parents.  Apparently gay people's sex lives are none of CSS's business unless they decide to marry.  Well, half right. 

Chief Justice Roberts, writing for the Court, holds in Fulton that Smith does not apply, because the contract at issue is not a neutral law of general applicability.  Rather, the contract gives DHS's Commissioner "sole discretion" to provide exemptions from its non-discrimination policy.  The Court focuses on the Commissioner's refusal to waive that provision to benefit CSS rather than on the fact that it has never waived the policy in any case (and likely never would).  The Court treats another provision of the contract, which likewise prohibits discrimination based on sexual orientation and allows for no exceptions, as irrelevant.  The Court will not read one contract provision as annulling another.  

The Court thus dodges the need to overrule Smith but creates an exception that will be almost as good as eliminating Smith altogether.  Even so, three Justices concurred to call for Smith to be overturned but worried about its replacement, and three other Justices concurred separately to lament the missed opportunity to overrule Smith.  The result will likely be to require that courts recognize religious exemptions to neutral laws of general application unless the government regulation is necessary to achieve a compelling government interest.  Such religious exemptions will be granted whenever a regulation burdens religious practice in any way.  It is not for the courts to weigh the centrality of the burdened right to one's religious belief.  And “religious beliefs need not be acceptable, logical, consistent, or comprehensible to others in order to merit First Amendment protection.”

Jamal Greene's alternative is to have courts engage in rights mediation rather than rights adjudication.  And it may be that if courts did so generally, courts could in far more cases leave it to other parties or institutions to work things out on their own.  So instead of treating CSS's Free Exercise rights as trumping all other rights, courts could recognize that right but also recognize DHS's right to choose what entities with which it contracts and allow that to be informed by the city's general policy of preferring not to contract with parties that discriminate. 

If the various rights and interests are considered in this case, it seems obvious to me (but perhaps that's just me) that the case comes out differently.  After all, DHS is absolutely not asking CSS to endorse same-sex marriage.  It is offering CSS a choice.  It can refuse to endorse same-sex marriage, but then it cannot contract with the city.  That may hamper its ability to engage in the important work it does placing children in foster families, but there are twenty other agencies that do so.  And CSS is then free to find other partners for whom it can provide its services while continuing to discriminate against same-sex couples.

Ultimately, rights mediation would force CSS to make a choice between two components of its mission.  Helping children find foster homes is one part of that mission; not endorsing same-sex marriage is another.  Which is more important to CSS?  Courts don't need to decide that for CSS.  CSS can decide on its own.  Note that the Court does not allow DHS the same freedom of choice.  It too wants to help children find foster homes, but it wants to do so on a non-discriminatory basis.  One can only understand the Court's decision to indulge CSS's discriminatory policies while paying no mind to contract terms and a city ordinance if one buys in to our uniquely American system of rights absolutism.

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