The Supreme Court’s upcoming decision in Fulton v. Philadelphia has the potential to provide important precedent for resolving disputes between LGBT persons and religious organizations.
The case involves the City of Philadelphia and foster care agency Catholic Social Services (CSS), whose case was brought by foster parent Sharonell Fulton and other foster parents. In March 2018, the City stopped placing children with CSS because of CSS’s religiously-based policy that it could not certify same-sex couples for adoption, but would instead refer any same-sex couple to one of the other 30 foster care agencies in Philadelphia. No same-sex couple has approached CSS.
The City maintained that CSS’s policy violated the terms of its contract with the City and that the City’s policies forbade providing a religious exemption to CSS. To participate in the foster care system again, the City said, CSS would need to comply with the City’s nondiscrimination requirements by agreeing to consider for adoption any same-sex couple that might approach it. CSS contended that it merely sought a religious exemption to step aside from taking actions and making statements contrary to its religious beliefs that would be required if it were forced to certify same-sex couples.
Chief Justice Roberts predicted a conflict of this nature would emerge in his Obergefell v. Hodges (2015) dissent: “Hard questions arise when people of faith exercise religion in ways that may be seen to conflict with the new right to same-sex marriage—when, for example … a religious adoption agency declines to place children with same-sex married couples.”
These hard questions include defining the government’s interest in preventing sexual orientation discrimination and how that interest should square with conflicting free exercise claims.
The case also raises several questions pertinent to religious freedom more generally: How do free exercise rights hold up in the context of a government contract? Will religious organizations be able to participate in providing public services in a manner consistent with their beliefs? And is it time to revisit the current free exercise precedent in Employment Division v. Smith (a 1990 case that makes religious exemptions difficult to attain)?
Where religious and sexual orientation rights meet
The “hard questions” anticipated by Chief Justice Roberts occupied a considerable amount of this particular case’s oral argument. At present, classifications based on sexual orientation do not receive “heightened scrutiny” under the Fourteenth Amendment. But Justices Breyer, Sotomayor, and Kagan all pressed essentially the same question: Should preventing sexual orientation discrimination be deemed a compelling state interest? And, by implication, should it be designated as a protected class warranting heightened scrutiny?
They hint there’s a case to be made because of the state’s interest in preventing the stigmatic harm associated with rejection on the basis of sexual orientation. This interest, Justice Sotomayor said, parallels the state’s interest in eradicating racial discrimination.
Obergefell emphasized the importance of preventing such stigma, at least with respect to same-sex couples who are married or wish to be married and their children. However, designating sexual orientation as a protected class analogous to race could jeopardize another insistence of Obergefell—that “religions, and those who adhere to religious doctrines, may continue to advocate with utmost, sincere conviction that, by divine precepts, same-sex marriage should not be condoned.”
If sexual orientation is treated analogous to race—though perhaps unlikely to happen with the Court’s current makeup—religious exemptions like the one CSS seeks would be presumptively unconstitutional. This is because race is a “suspect class,” meaning that any governmental action classifying based on race is subject to “strict scrutiny,” the Court’s highest level of scrutiny. If sexual orientation was designated as a protected class akin to race, then in cases where religious and LGBT rights are in tension, religious exemptions would only be possible if the government could show the exemption satisfied strict scrutiny. Because strict scrutiny burdens the government with demonstrating that it achieved a compelling governmental interest through narrowly tailored means, it is an intentionally difficult test to pass. Plaintiffs simply claim a law has burdened their free exercise, here a nondiscrimination requirement invoked by a contract is the source of the burden.
A better balancing of both important interests at stake—the interest in preventing sexual orientation discrimination, as well as the interest in allowing religious organizations and persons with traditional views about marriage to be able to live in harmony with those convictions—could prevent one interest from presumptively trumping the other. Just how to suitably balance these interests is, of course, a difficult question, and the Court shied away from answering it in Masterpiece Cakeshop v. Colorado (2018). Even if the Fulton Court attempts to answer this question, the context of Fulton could leave the answer with only a narrow application.
Free exercise claims in a unique context
For a free exercise case, the context of Fulton is unique. Unlike most free exercise cases, where plaintiffs simply claim a law has burdened their free exercise, here a nondiscrimination requirement invoked by a contract is the source of the burden. How to understand the relationship between the City and CSS is a major point of contention in the case as the nature of the relationship determines which precedent should be used.
Fulton claims that the relationship is a regulatory one: Philadelphia is acting as sovereign and using its regulatory authority to require CSS’s compliance with a nondiscrimination provision that burdens CSS’s religious exercise. As a result, Free Exercise Clause precedent such as Church of Lukumi Babalu Aye v. City of Hialeah (1993), which prohibits religious targeting, should apply.
Fulton argues that the application of this precedent demonstrates the City’s actions were unconstitutional; the City provided other categorical exemptions at the placement stage but specifically refused to provide a religious exemption.
Philadelphia claims that this is a contractual relationship where the City is neutrally enforcing its contract rights. From this view, contract law should guide the analysis, and because CSS is carrying out a government function as a government contractor, free exercise claims cannot excuse noncompliance.
How exactly the Court ends up defining the relationship between the City and CSS will largely determine which precedent should govern. If defined as a mere regulatory context, then Free Exercise Clause precedent alone could potentially guide, but entirely dismissing the contracting context seems unlikely. Because the Court lacks guiding case law on free exercise claims in a contracting context, it may need to develop or extend analysis about how to resolve free exercise claims in this context.
Implications for religious organizations’ involvement in providing public services
How the Court addresses the contracting context may set an important precedent for religious organizations’ ability to continue providing public services such as foster care agencies, homeless shelters, and food pantries.
Ms. Lori Windham, Fulton’s counsel, posed a poignant question on the subject in oral argument: “Does the Free Exercise Clause shrink every time the government expands its reach and begins to regulate work that has historically and traditionally been done by religious groups?”
In the case of foster care, there is no alternative to working with the City. Because the state has assumed responsibility for foster children, CSS cannot simply carry on its work as a private organization. It must either work with the City, which requires meeting the City’s nondiscrimination requirements that violate its beliefs, or it must cease its foster care operations. Enforcing this choice with no room for religious accommodation could have sweeping implications for religious organizations’ ability to carry out their charitable work. Religious accommodations could help to keep religious organizations involved, but their viability as a solution in these situations is tenuous.
At the same time, the City has an understandable desire to neutrally enforce its contracts. It fears making one exemption could require it to grant many other exemptions, creating chaos in its contract enforcement and inconsistency in how the public is served. It’s true that the City can use its discretion in choosing which organizations to contract with; CSS merely has a right to be considered. But it also seems understandably unfair to religious organizations to be booted out of the work so central to their missions—work which, in many cases, they were engaged in long before the government became involved. And forcing religious organizations out of this work seems to undermine the value of a pluralistic society.
Religious accommodations could help to keep religious organizations involved, but their viability as a solution in these situations is tenuous. The argument for religious exemptions seems to work well in Philadelphia, where there are over 30 other foster care agencies that could serve same-sex couples. However, as a standard, a blanket allowance of religious accommodations could be difficult for the Court to adopt given the possibility of situations where only a few organizations contract with a city. A sufficient number of alternatives is perhaps necessary to allow religious accommodations, but granting them on this standard may render the success of free exercise claims largely dependent on factors outside of religious organizations’ control.
The future of Employment Division v. Smith
The current standard for religious accommodations, at least in more traditional contexts, is Employment Division v. Smith (1990). Whether Smith should be revisited is one of the questions the Court agreed to consider in hearing the case. Smith was a free exercise case that said the government does not have to provide religious exemptions to laws that are neutral and generally applicable.
It was Smith that spurred Congress to pass the Religious Freedom Restoration Act of 1993 (RFRA), which statutorily restored the strict scrutiny test used prior to Smith for free exercise claims against federal laws. Overruling Smith could restore free exercise protection for religious exemptions that would extend to both the federal and state governments.
But in order for Smith to be overturned, it would need to be applied to this case, and neither Fulton nor the City of Philadelphia advanced the argument that Smith is actually the right precedent, despite its application in the lower courts.
It isn’t clear that the Court is interested in revisiting Smith, either, because replacing it could be tricky. When Justice Barrett asked what standard should replace Smith, Fulton’s counsel hinted at the compelling interest test in Sherbert v. Verner (1963) as well as other approaches used by the Court, such as non-neutrality and targeting, depending on the context.
In raising the question about revisiting Smith to Philadelphia’s counsel, Justice Breyer conceded, “I’ve always thought that Smith is a problem or a solution to a problem that nobody could figure out how to answer … ” And perhaps until the Court knows the answer, it will decline to revisit Smith.
An unnecessary conflict
An unfortunate aspect of this case is that it is being resolved through litigation at the highest court in the land. No same-sex couple was ever turned away from CSS, and an abundance of other options existed for same-sex couples. Several well-thought policy solutions have been suggested in recent years to prevent stigmatic harm to gay individuals and prioritize religious organizations’ ability to stay involved in a work they do well.
But instead of the parties finding a compromise, the case has dragged on now for more than three years, all while foster children—whose interests should command the highest attention—have been left with one less important option for placement in Philadelphia.
When the decision comes out, the win-lose nature of litigation will likely fan the culture war flames recently reignited by Congress’ reconsideration of the Equality Act, as well as a class-action lawsuit challenging federally funded Christian universities’ religious exemptions regarding LGBT policies. As the U.S. navigates the future of LGBT and religious freedom tension points, it would be preferable to seek policy solutions that balance and maintain the important rights of both parties rather than rigid winner-take-all solutions.
