Supreme Court Reconsiders Religious Liberty Rule in Foster Care Case

Image: AP Photo/J. Scott Applewhite
Image: AP Photo/J. Scott Applewhite

While the nation focused on counting votes on Wednesday, the United States Supreme Court heard arguments in a case that could dramatically expand protections for religious liberty.

Lawyers for Philadelphia argued that the city should be allowed to discriminate against religious social service providers as long as the rules it uses are “neutral laws of general applicability,” citing a 1990 decision penned by conservative legal giant Antonin Scalia. Lawyers for Catholic Social Services, on the other side, argued the court should reconsider Scalia’s previous ruling in Employment Div. v. Smith, because it established a standard that allows governments to target religious minorities and place significant burdens on what the First Amendment calls their “free exercise.”

“The Free Exercise clause is at the heart of our pluralistic society, and it protects petitioners’ vital work for the Philadelphia community,” attorney Lori Windham argued in Fulton v. City of Philadelphia.

“The city is reaching out and telling a private religious ministry—which has been doing this work for two centuries—how to run its internal affairs. And trying to coerce it to make statements that are contrary to its religious beliefs as a condition of continuing to participate in the religious exercise that they have carried out in Philadelphia for two centuries.”

In 2018, a city official read a newspaper story about conservative Christian opposition to same-sex foster parents. Philadelphia had long contracted foster care services to Catholic Social Services. There weren’t any complaints about the church-run organization discriminating against LGBT people, but the official was nonetheless concerned and brought the issue to the city council. The council changed its contracting policies and passed a resolution opposing “discrimination that occurs under the guise of religious freedom.” The entire process took three days.

Catholic Social Services asked for an exemption from the city, noting it would be happy to refer same-sex couples who wanted to foster to the more than two dozen other agencies that also contract with the city. LGBT people wouldn’t be prevented from fostering, and the Catholic agency shouldn’t be required to give up its religious convictions just because they are unpopular. The city refused, saying the new standards had to be equally applied to everyone.

“A universal clause in every contract bars sexual orientation discrimination,” said Neal Katyal, the attorney representing Philadelphia. “That clause contains no exceptions, and it applies equally to every [foster care agency], religious and secular alike.”

Katyal was appealing to the 1990 case, when the court established “general applicability” as the standard for deciding when a law violates religious liberty. In that case, two members of the Native American Church were denied Oregon’s state unemployment benefits because they were fired for using peyote. They objected that the hallucinogenic was a religious sacrament in the church and should thus be protected.

Scalia, writing for the majority, said laws that specifically prohibit religious activity were not allowed under the First Amendment, but laws that incidentally prohibit religious activity are. As long as the law is not targeted at religious exercise, it is fine.

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Source: Christianity Today