More SCOTUS: Unanimous court strikes down ban on religious groups operating foster-care services according to faith

Erin Schaff/The New York Times via AP, Pool

Want to bet that this decision might have Colorado rethinking its persecution of Jack Phillips? In a surprisingly unanimous decision today, the Supreme Court overturned a law forcing religious groups to certify same-sex couples in foster-care services. Requiring the Catholic Social Services agency to either recognize marriages that violate Catholic teaching or shut down “violates the Free Exercise clause of the First Amendment,” Chief Justice John Roberts wrote:

The Supreme Court on Thursday unanimously ruled that Philadelphia may not bar a Catholic agency that refused to work with same-sex couples from screening potential foster parents.

Chief Justice John G. Roberts Jr., writing for six members of the court, said that since the city allowed exceptions to its policies for some other agencies it must also do so in this instance. The Catholic agency, he wrote, “seeks only an accommodation that will allow it to continue serving the children of Philadelphia in a manner consistent with its religious beliefs; it does not seek to impose those beliefs on anyone else.”

The decision, in the latest clash between anti-discrimination principles and claims of conscience, was a setback for gay rights and further evidence that religious groups almost always prevail in the current court.

The New York Times offers that last paragraph in disapproval in a clear piece of editorializing in its news reporting. Adam Liptak overlooks the fact that freedom of religious expression is a right explicitly guaranteed in the text of the Constitution, within the First Amendment. Any competing interests must be subsidiary to that explicit grant, regardless of how the New York Times emotes about it.

Thankfully, the unanimous court agrees, although the majority took a pass on overturning a precedent that might have helped clarify the point:

As an initial matter, it is plain that the City’s actions have burdened CSS’s religious exercise by putting it to the choice of curtailing its mission or approving relationships inconsistent with its beliefs. The City disagrees. In its view, certification reflects only that foster parents satisfy the statutory criteria, not that the agency endorses their relationships. But CSS believes that certification is tantamount to endorsement. And “religious beliefs need not be acceptable, logical, consistent, or comprehensible to others in order to merit First Amendment protection.” Thomas v. Review Bd. of Ind. Employment Security Div., 450 U. S. 707, 714 (1981). Our task is to decide whether the burden the City has placed on the religious exercise of CSS is constitutionally permissible.

Smith held that laws incidentally burdening religion are ordinarily not subject to strict scrutiny under the Free Exercise Clause so long as they are neutral and generally applicable. 494 U. S., at 878–882. CSS urges us to overrule Smith, and the concurrences in the judgment argue in favor of doing so, see post, p. 1 (opinion of ALITO, J.); post, p. 1 (opinion of GORSUCH, J.). But we need not revisit that decision here. This case falls outside Smith because the City has burdened the religious exercise of CSS through policies that do not meet the requirement of being neutral and generally applicable. See Church of Lukumi Babalu Aye, Inc. v. Hialeah, 508 U. S. 520, 531–532 (1993).

Government fails to act neutrally when it proceeds in a manner intolerant of religious beliefs or restricts practices because of their religious nature. See Masterpiece Cakeshop, Ltd. v. Colorado Civil Rights Comm’n, 584 U. S. ___, ___–___ (2018) (slip op., at 16–17); Lukumi, 508 U. S., at 533. CSS points to evidence in the record that it believes demonstrates that the City has transgressed this neutrality standard, but we find it more straightforward to resolve this case under the rubric of general applicability.

The reason for this approach is that the city of Philadelphia already makes exceptions to its contracting rules in other circumstances. Having made exceptions for other groups on other points, the justices ruled that the city has a duty to make exceptions for religious expression as well:

The City and intervenor-respondents add that, notwithstanding the system of exceptions in section 3.21, a separate provision in the contract independently prohibits discrimination in the certification of foster parents. That provision, section 15.1, bars discrimination on the basis of sexual orientation, and it does not on its face allow for exceptions. See Supp. App. to Brief for City Respondents 31. But state law makes clear that “one part of a contract cannot be so interpreted as to annul another part.” Shehadi v. Northeastern Nat. Bank of Pa., 474 Pa. 232, 236, 378 A. 2d 304, 306 (1977); see Commonwealth ex rel. Kane v. UPMC, 634 Pa. 97, 135, 129 A. 3d 441, 464 (2015). Applying that “fundamental” rule here, Shehadi, 474 Pa., at 236, 378 A. 2d, at 306, an exception from section 3.21 also must govern the prohibition in section 15.1, lest the City’s reservation of the authority to grant such an exception be a nullity. As a result, the contract as a whole contains no generally applicable non-discrimination requirement.

Finally, the City and intervenor-respondents contend that the availability of exceptions under section 3.21 is irrelevant because the Commissioner has never granted one. That misapprehends the issue. The creation of a formal mechanism for granting exceptions renders a policy not generally applicable, regardless whether any exceptions have been given, because it “invite[s]” the government to decide which reasons for not complying with the policy are worthy of solicitude, Smith, 494 U. S., at 884—here, at the Commissioner’s “sole discretion.”

Furthermore, the “public accommodation” issue doesn’t apply here either. Roberts writes that foster-care certification by its nature intends to discriminate, ie, weed out foster-care applicants that do not meet expectations for acceptable child-care environments:

Certification as a foster parent, by contrast, is not readily accessible to the public. It involves a customized and selective assessment that bears little resemblance to staying in a hotel, eating at a restaurant, or riding a bus. The process takes three to six months. Applicants must pass background checks and a medical exam. Foster agencies are required to conduct an intensive home study during which they evaluate, among other things, applicants’ “mental and emotional adjustment,” “community ties with family, friends, and neighbors,” and “[e]xisting family relationships, attitudes and expectations regarding the applicant’s own children and parent/child relationships.” 55 Pa. Code §3700.64. Such inquiries would raise eyebrows at the local bus station. And agencies understandably approach this sensitive process from different angles. As the City itself explains to prospective foster parents, “[e]ach agency has slightly different requirements, specialties, and training programs.” App. to Pet. for Cert. 197a. All of this confirms that the one-size-fits-all public accommodations model is a poor match for the foster care system.

This recalls the point that CSS is not the only agency contracted for foster-care certification. Same-sex couples can get certified through other agencies; Roberts notes that CSS routinely refers such requests to contractors who consider same-sex couples. The city has largely ceded the authority to determine suitability, and as Roberts notes, explicitly warns applicants of that fact up front.

As a result, Roberts concludes, none of Philadelphia’s arguments succeed.  The attempt to force CSS or any other religious group contracted for certification to violate its own principles violates the explicit text of the First Amendment:

As Philadelphia acknowledges, CSS has “long been a point of light in the City’s foster-care system.” Brief for City Respondents 1. CSS seeks only an accommodation that will allow it to continue serving the children of Philadelphia in a manner consistent with its religious beliefs; it does not seek to impose those beliefs on anyone else. The refusal of Philadelphia to contract with CSS for the provision of foster care services unless it agrees to certify same-sex couples as foster parents cannot survive strict scrutiny, and violates the First Amendment.

In view of our conclusion that the actions of the City violate the Free Exercise Clause, we need not consider whether they also violate the Free Speech Clause.

Again, the most remarkable aspect of this decision is its unanimity. Justices Samuel Alito, Neil Gorsuch, and Clarence Thomas would have gone further in striking down Smith, but that might not have carried a majority, let alone sustain unanimity. Strikingly, not one of the three liberal jurists even bothered to write a concurrence that might have argued for a more limited interpretation; indeed, Stephen Breyer joined Amy Coney Barrett’s brief concurrence arguing that strict scrutiny must always apply in cases involving freedom of religious expression:

We need not wrestle with these questions in this case, though, because the same standard applies regardless whether Smith stays or goes. A longstanding tenet of our free exercise jurisprudence—one that both pre-dates and survives Smith—is that a law burdening religious exercise must satisfy strict scrutiny if it gives government officials discretion to grant individualized exemptions. See id., at 884 (law not generally applicable “where the State has in place a system of individual exemptions” (citing Sherbert, 374 U. S., at 401, n. 4)); see also Cantwell v. Connecticut, 310 U. S. 296, 303–307 (1940) (subjecting statute to heightened scrutiny because exemptions lay in discretion of government official). As the Court’s opinion today explains, the government contract at issue provides for individualized exemptions from its nondiscrimination rule, thus triggering strict scrutiny. And all nine Justices agree that the City cannot satisfy strict scrutiny. I therefore see no reason to decide in this case whether Smith should be overruled, much less what should replace it. I join the Court’s opinion in full.

What will this ruling in Fulton et al v Philadelphia mean? Catholic Social Services now has a powerful entrée to return not just to foster-care services but also adoption services, an industry from which several states have excluded CSS based on similar policies. It also suggests, although doesn’t entirely predict, how the court might end up expanding on Masterpiece Cakeshop if challenged to review it again. (Alito makes a passing reference to this in his concurrence.) To get there, the court would have to take up the Free Speech clause that they avoided in this case, as Clarence Thomas predicted they would eventually have to confront in the 2018 Masterpiece Cakeshop ruling.

For now, however, the ruling makes one point spectacularly clear. The explicit text of the Constitution, especially in the First Amendment, overrules cultural pressure and policymaking. That’s a win, and the unanimous decision makes that win even more impressive.