Case No. 19-123 | 3d Cir.
November 4, 2020
Preview by Sahar Atassi, Member
The Supreme Court will hear a case that will help define the rights afforded to faith-based institutions. In this case, the city of Philadelphia barred Catholic Social Services (“CSS”) from placing children in foster homes because of CSS’s policy of not licensing same-sex couples to be foster parents.
CSS is a religious nonprofit agency that contracts with the city of Philadelphia to provide foster care. After the City became aware of CSS’s refusal to work with same-sex couples, the City informed CSS that if did not comply with the non-discrimination requirement within their contract, the contract would not be renewed. CSS refused, and the City stopped referring children to the agency. CSS sued, seeking an order to require the city to renew their contractual relationship while permitting CSS to turn away same-sex couples who wish to be foster parents. CSS cited violations of its rights under the First Amendment and under Pennsylvania’s Religious Freedom Protection Act. The Court denied the request. On appeal, the Third Circuit affirmed the district court’s ruling.
Among the questions presented to the Supreme Court is whether the landmark case Employment Division, Department of Human Resources of Oregon v. Smith ought to be revisited. 494 U.S. 872 (1990). In Smith, the court held that while religious belief is always protected under the Free Exercise Clause, religiously motivated conduct enjoys no special protections or exemption from general, neutrally applied legal requirements. Id. at 878-79. Under Smith, if state law is general and neutral, then it does not trigger heightened scrutiny under the Free Exercise Clause.
Here, the Third Circuit, in upholding the City’s practice, relied heavily on Smith, and concluded that Philadelphia’s non-discrimination requirement was “a neutral, generally applicable law, and the religious views of CSS do not entitle it to an exception from that policy.” Fulton v. City of Philadelphia, 922 F.3d 140, 147 (3d Cir. 2019).
CSS argues that Smith should be overruled because it has not only dictated outcomes that are highly restrictive of Americans’ rights to freely exercise their faith, but because it has also resulted in inconsistent protection for religious freedom from circuit to circuit because of how federal circuit courts have split over how its application. CSS urges the court to instead “apply strict scrutiny to government actions infringing on religious exercise.” Brief for Petitioners at 19, Fulton v. City of Philadelphia, No. 19-123 (U.S. filed May 27, 2020)
The City, on the other hand, argues that the “case is an exceptionally poor vehicle to consider the validity of Smith” because it arises in the government contracting context and there is no historical evidence furthered to suggest that the free exercise of religion includes a “right to wield government power as one’s religion dictates.” Brief for City Respondents at 47, Fulton v. City of Philadelphia, No. 19-123 (U.S. Filed Aug. 13, 2020). The City also argues that even if Smith were overturned, the non-discrimination requirement within the contract would still satisfy strict scrutiny because it is narrowly tailored to serve the state’s compelling interests. Id. Furthermore, the City argues that stare decisis favors retaining Smith because it has support in original meaning and has served as the foundation of precedents and legislative enactments for decades. Id. at 48–52.
The Court could avoid revisiting Smith and instead rule narrowly on whether or not the city manifested anti-religious bias in its treatment of Catholic Social Services, using a similar approach as Masterpiece Cakeshop v. Colorado Civil Rights Commission, 138 S. Ct. 1719 (2018). In Masterpiece Cakeshop, the Court did not decide the central issue of whether businesses may claim exemptions from anti-discrimination laws on religious grounds, but instead ruled narrowly that the baker involved in the case had been mistreated by members of the state’s civil rights commission who had expressed hostility toward religion. Id. at 1730–32.
While, as the City suggests, a government contracts case does not make for the most obvious choice to overturn Smith, it is worth noting that in early 2019 four of the justices signaled that they were open to reconsidering Smith. See Kennedy v. Bremerton Sch. Dist., cert. denied, 139 S. Ct. 634 (2019). Whether Smith is overruled or not, this case has the potential to have broad implications on non-discrimination protections. Given the current composition of the Court, this latest clash between freedom of religion and anti-discrimination is one to keep an eye on.