Supreme Court Says Philadelphia Can’t Cut Ties With Catholic Foster Care Group

Distinguishing CSS from a restaurant, drug store or swimming pool that is more classically considered “open to, accepts or solicits the patronage of the general public,’” the chief justice likewise denied Philadelphia's attempt to classify foster service as a public accommodation.

“Certification as a foster parent, by contrast, is not readily accessible to the public,” Roberts wrote. “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.’ Such inquiries would raise eyebrows at the local bus station.”

Several members of the court filed concurring opinions where they dissected the court’s decision not to fiddle with Employment Division, Department of Human Resources of Oregon v. Smith, controlling precedent from 1990 in which the court said that the First Amendment’s free exercise clause does not apply to generally applicable laws that don’t target specific religious practices.

In a 3-page concurring opinion, Justice Amy Coney Barrett said the CSS case did not offer a reason to overrule or replace Smith. The case was one of Barrett’s firsts following her October confirmation.

“We need not wrestle with these questions in this case ... because the same standard applies regardless whether Smith stays or goes,” she wrote. “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.” 

Justice Stephen Breyer joined Barrett's opinion but took issue with the first paragraph where she said she found the historical record “more silent than supportive” as to whether the founding fathers thought the First Amendment should “require religious exemptions from generally applicable laws in at least some circumstances.”

Justice Samuel Alito concurred only in the judgment and was joined by Justices Clarence Thomas and Neil Gorsuch in a hefty 77-page concurring opinion that laments the court's reticence to confront Smith.

“This decision might as well be written on the dissolving paper sold in magic shops,” Alito wrote. “The city has been adamant about pressuring CSS to give in, and if the city wants to get around today’s decision, it can simply eliminate the never-used exemption power. If it does that, then, voilà, today’s decision will vanish — and the parties will be back where they started. The city will claim that it is protected by Smith; CSS will argue that Smith should be overruled; the lower courts, bound by Smith, will reject that argument; and CSS will file a new petition in this court challenging Smith. What is the point of going around in this circle?”

Justice Gorsuch’s 11-page concurring opinion, signed by Justices Thomas and Alito, echoes this sentiment. 

“Perhaps our colleagues believe today’s circuitous path will at least steer the court around the controversial subject matter and avoid ‘picking a side,’” he wrote. “But refusing to give CSS the benefit of what we know to be the correct interpretation of the Constitution is picking a side. Smith committed a constitutional error. Only we can fix it.”

Philadelphia's attorney, Neal Katyal of the firm Hogan Lovells, did not respond Thursday to a request for comment. Catholic Social Services was represented by Becket lawyer Lori Windham.

The religious liberty law firm emphasized in a statement this afternoon that more than 70% of the children supported by the CSS foster care program are racial minorities.

“It’s a beautiful day when the highest court in the land protects foster moms and the 200-year-old religious ministry that supports them,” Windham said in a statement. “Taking care of children, especially children who have been neglected and abused is a universal value that spans all ideological divides. Today, I am grateful that the Supreme Court protected heroes of the foster care system like Sharonell and Toni, who give of themselves daily to care for children in need.”

Becket's statement includes remarks from both of the foster moms who brought the suit.

“My faith is what drives me to care for foster children here in Philadelphia, and I thank God the Supreme Court believes that’s a good thing, worthy of protection," said plaintiff Sharonell Fulton, has fostered more than 40 children over the course of 26 years.

Kara Rollins, an attorney at the New Civil Liberties Alliance, one of the groups that supported the foster parents in an amicus brief, called it too bad Thursday that the justices stoped "short of recognizing that the First Amendment protects Americans from unequal constraints that discriminate against them on account of their religious beliefs and practices."

Expanding upon this argument, the alliance's president Philip Hamburger noted that the problem with such policies is that, "even when administrative rules are facially neutral, they often end up burdening religious Americans in ways enacted laws would not." (Emphasis in original)

The ACLU's Cooper meanwhile called Thursday's decision "good news for the more than 400,000 children in foster care across the country, who are the ones who get hurt the most if placement decisions are made based on an agency’s religious beliefs rather than the child’s best interest."

She also lauded the court's care in not extending a license to discriminate to other taxpayer-funded government programs such as homeless shelters, disaster relief programs and health care.

“We are relieved that the court did not recognize a license to discriminate based on religious beliefs,” Cooper said. “Opponents of LGBTQ equality have been seeking to undo hard-won non-discrimination protections by asking the court to establish a constitutional right to opt out of such laws when discrimination is motivated by religious beliefs. This is the second time in four years that the court has declined to do so.”   

In a report on discriminatory foster care agencies late last year, the Human Rights Campaign quoted statistics showing that some 2 million LGBTQ adults in the U.S. who are interested in adoption. This makes them "an untapped resource when it comes to finding families for children and youth in foster care," the campaign said in a statement Thursday. Separately, the group has also reported that "LGBTQ youth are overrepresented in the foster care system."

"We celebrate the LGBTQ families who are dedicated to providing homes to the thousands of children in the child welfare system," Human Rights Campaign President Alphonso David said in a statement. "Yet we know there is more work that must be done to ensure that the best interest of the child is always prioritized, including through family reunification. And there is more work to be done to ensure that LGBTQ people do not face discrimination anywhere in the country in every aspect of public life — our next step is to pass the Equality Act."

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