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Legal Docket: Fulton v City of Philadelphia - S2.E3


WORLD Radio - Legal Docket: Fulton v City of Philadelphia - S2.E3

Religious Liberty and emerging LGBT rights clash when the city of Philadelphia excludes Catholic Social Services from placing children with foster families.

MARY REICHARD, HOST: Sharonell Fulton has read a lot of children’s books over the years...

FULTON: Are they angels or fairies? Girl: Fairies. Fulton: Oh, fairies.

Her modest house has been a refuge to more than 40 children in her hometown of Philadelphia.

FULTON: Mostly what I’ve done is emergency placement. So that means that they’ve been taken from their family. And they don’t understand why. They’re hurting. They come to you mostly with no clothing.

It’s to that jagged edge of a child’s pain that Sharonell Fulton applies the balm of religious faith.

FULTON: My goal with the children is to reach out. Find a way. Give them some time. Show them some love. Be there when they need you. I let ‘em know that they’re welcome here. You are welcome here, and I’m happy that you’re with us.

JENNY ROUGH, HOST: Taking care of a hurting child isn’t easy and you don’t go it alone. For Sharonell Fulton over the past 26 years, that crucial partner is Philadelphia’s Catholic Social Services.

FULTON: You know, the biggest thrill that I get is when they’re all asleep and I can walk through and look in their little faces and check their dirty hands and I’ll say, I’ve got this! This is what I want to do. And I wouldn’t be able to do it without Catholic Social Services.

But in March 2018, the City of Philadelphia blocked Catholic Social Services from certifying homes for children. Including Fulton’s, after so many years.


That turn-about came via a Sexual Orientation and Gender Identity ordinance. We’re going to refer to it a lot, so we’ll use the acronym SOGI when we do. SOGI ordinances have popped up all over the country. Philadelphia used its SOGI ordinance to require adoption agencies to treat same-sex households the same as families with a married mother and father.

MR: But Catholic Social Services doesn’t certify same sex households for child placement.

They never have. That’s because of traditional Catholic belief that children are best placed in homes with a married mother and father, or in the home of a dedicated single parent. Not in a home with homosexual or unmarried heterosexual relationships.

And that placed the agency at odds with the new city ordinance. City officials wanted the Catholic agency to drop its religious beliefs as a condition of operating in Philadelphia.

For Catholic Social Services, that was a nonstarter. The agency argued the city violated its right to the free exercise of religion and freedom of speech.

Rights that Catholics in America have exercised since they began caring for kids in need over 200 years ago.

Rights that Catholic Social Services, Sharonelle Fulton, and another foster mother refused to give up … while taking their case all the way to the U.S. Supreme Court.


UNDERWRITING: Support for the Legal Docket podcast comes from listeners like you. Additional support comes from Samaritan Ministries, a Biblical solution to health care, connecting Christians across the nation who care for one another spiritually and financially when a medical need arises. More at samaritan ministries dot org slash world podcast.

MR: Fulton v City of Philadelphia. It turned out to be the biggest religious-liberty case of the 2020-2021 term of the Supreme Court. For C-S-S, Catholic Social Services, the city’s insistence that the agency abide by SOGI rules felt like a targeted attack.

After all, CSS hadn’t changed. The foster mothers hadn’t, either. The city had. To defend its rights, CSS asked a district court for a restraining order. That failed.

JR: So they took the next step: appealing to the United States Court of Appeals for the Third Circuit. Again, CSS asked the court to restrain the city of Philadelphia from violating its rights. A three judge panel heard arguments in the summer of 2018.

WINDHAM: Good afternoon and may it please the Court My name is Laurie Windham.

MR: Lori Windham represented C-S-S.

WINDHAM: And I would like to reserve 10 minutes of my time for rebuttal.

She argued the city decided to exclude the agency on unconstitutional grounds—on the basis of religion— and then … came up with justifications post hoc … meaning “after the fact.” In other words, she argued that the city decided to target religious practice and belief, knew that was unconstitutional, then cooked up a plausible cover using SOGI rules to justify their actions.

MR: Listen to some of the questioning Windham received from Circuit Judges Anthony Scirica, Marjorie Rendell, and Thomas Ambro:

SCIRICA: How's the city requiring Catholic Social Services to change its views on gay marriage in order to receive a contract? Isn't it really saying that you can't discriminate in the performance of carrying out that contract?...

RENDELL: If [they were] to exempt you, then it would be preferring religion. So it's, as long as it's generally applicable, they're not digging in their heels as much as they're applying it to everyone. And you happen to be in that group...

AMBRO: What would happen if someone opened the hotel? And they said that it was part of their religious mission that only whites could be there because they believe in white supremacy. And so they have to operate the hotel to fulfill their religious calling. Has to be whites only. Isn't the government's interest being non discrimination? What would happen in that situation?...

So the court pursued two lines of questioning: One, You can’t discriminate. Two, We can’t establish a religion. In between those two points, a vast canyon of unanswered questions. When this panel of judges handed another loss to CSS and the foster parents, nobody was particularly surprised.

Quoting from the appeals court opinion: “The City stands on firm ground in requiring its contractors to abide by its non-discrimination policies when administering public services.”

That’s a simple sentence packed with complex legal meaning. Three terms have particular meaning in the law: “contractors,” “non-discrimination,” and “public services.” And the parties in this case don’t agree with how the appeals court applied those meanings.

JR: The three-judge panel followed a cue from the Supreme Court in ruling against CSS and the foster mothers. They relied on a high-court decision from 1990, Employment Division v Smith. That case held that it’s permissible to fire Native Americans for one of their religious practices: use of the hallucinogenic drug peyote. Not only fire them, but then deny them unemployment compensation. The idea is if a law is generally applicable and neutral on its face, not targeting religion, then it’s okay.

In the Smith case, Native Americans couldn’t claim religious discrimination against them because the law against using a controlled substance, here peyote, applied to everyone. In legal parlance, it was “neutral on its face.”

MR: The appellate judges in Fulton were bound by that decision. They decided the Constitution permits the government to regulate religiously motivated conduct—so long as that regulation is not a veiled attempt to suppress religious beliefs the government doesn’t like. The appeals panel found no such bad intent. But that’s exactly what Windham’s clients saw here: a veiled attempt to suppress them.

JR: On the other side of that debate?

ISTVAN: Jane Istvan, and I represent the city defendant. Judge Ambro, I’d like to start out picking up on some of your points.

She says this case isn’t about interfering with free exercise of religion. She says this is a simple case of “public accommodation.” That phrase also has special meaning in the law. Examples of places of public accommodation include restaurants, retail shops, libraries, museums. Those businesses can’t treat people differently based on certain protected characteristics.

MR: So, Istvan argues, CSS shouldn’t be able to do it, either. I gave her a call.

ISTVAN: We don't resolve issues of discrimination that way. If you have a Muslim couple who wants to be served in a Christian restaurant, and those people have very strongly held beliefs that, you know, they have issues with that religion. We don't say, well, it's okay, because you can go down the street and you can find service at another restaurant.

Istvan is right, if CSS is a public accommodation, then it can’t send people elsewhere based on a protected characteristic it doesn’t like. You may be thinking, wait, what about the Colorado baker Jack Phillips who won his case? He declined to create a custom cake for a same-sex wedding. Well, the Supreme Court decided the case differently: It held that the state commision on human rights in Colorado showed animus toward religion in the way it treated Phillips; on that narrow basis, Phillips won.

That’s not the question in the Fulton case. Here, the questions are broader and more numerous. And Windham, lawyer for CSS, argues that Istvan’s statement that this foster care agency is a public accommodation, is the wrong analysis. Her client is not a public accommodation. That came up during the argument in the Third Circuit. Listen to this exchange between Judge Rendell and Windham.

RENDELL: Because a home study certification is not a good or service that is generally available to the public. Its purpose is to be selective.

“Selective” and “generally available to the public” are opposites.

I got in touch with Lori Windham and asked her to explain what’s involved in a home study certification.

WINDHAM: They have to actually go into their home and interview everybody who lives in that home and talk to them about their personal and intimate relationships. And then write up a written report and make a recommendation over whether this family ought to be approved to provide foster care. And Catholic Social Services like many other religious agencies nationwide, says well, we can't write an approval, a written approval of an unmarried couple or a same-sex couple.

JR: Getting into the details about someone’s intimate behaviors, in other words, is much more involved than ordering food at the drive-through or renting a room for the night. You could say it’s the definition of a selective process. Here’s what’s interesting: No same sex couple ever even asked CSS for help. But the agency had a plan for what to do if a couple did ask.

WINDHAM: If someone approached us and asked them for that, then we would refer them to another agency who can go in their home and interview them and provide them with that approval. So they can still provide foster care. But you can't force us to write a written report and express our approval. That's compelled speech.

So that’s one important aspect of this dispute: nobody’d actually been turned away from CSS. Although Istvan, lawyer for the city, said same-sex couples just knew not even to try with that agency. Regardless, the agency contests being compelled to approve that which it cannot approve.

MR: This kind of thing happens all over the country … not just in Pennsylvania, where the Fulton case comes from. Consider Chad and Melissa Buck. This Michigan couple didn’t have to get a home study, but they did get one from a Catholic agency. The Bucks faced a similar dilemma in their state. Michigan’s SOGI language came up against the Catholic foster care agency they worked with.

I called up Melissa Buck to get her story. Her lawyer Nick Reaves was on the line, too.

BUCK: (phone ringing) Hi this is Nick. Great. Hi, Mary, I guess you have on Melissa.

Melissa and Chad Buck have five children, all adopted through a Catholic agency in their area. Three of her children came as a sibling group. They’d been through a traumatic time.

BUCK: And so we were able to take all three and adopt all three at once was, it's a big change. (laugh)...And just that the fact that we get to be family is so cool for us. You know, we love it.

Her lightness of tone changed when I probed for more details. She had to take a moment to compose herself.

BUCK: When we got our oldest children, we found out that our, our oldest child, he was four. And he had a brother who was two and a sister who was one, and it was his job to take care of those two children. His parents would leave. They would not leave really any food out for them, maybe a box of cereal. It was his job to make sure that the kids were fed. If his sister was crying in her crib, it was his job to go quick, get her a bottle and give it to her. Um, because he was the oldest, he was the one who deemed old enough to be hit...

JR: You begin to grasp the bigger picture. Neglect. Abuse. No way for a defenseless child to live. A life like that leaves a mark. Buck put it like this: “How do you mother a child who is used to being thrown against a wall?”

The Bucks prepared with the help of their local Catholic agency: who trained them, licensed them, and mentored them. And once a child was placed in their home, within 24 hours someone from the CSS came to make sure they had everything they needed. Bringing with them a whole network of materials and relationships.

MR: And they needed it. Their oldest son lashed out a lot. In his short life, “authority figures” meant danger. So the Bucks working with CSS put her son into play therapy. Melissa sat in on one of the sessions.

BUCK: And it was the most eye-opening experience I’ve had in foster care...We were playing in the sandbox and he had chosen a little boy, uh, you know, figurine to be him. And I was, uh, figurine as myself and the therapist was a figurine that was representing, um, you know, his, his birth mother. And he wanted to play, our son wanted to play this game where he buried himself in the sand and we were supposed to be trying to find him and nobody could find him and he was lost...

Eventually, the two adult figures uncovered that little boy in the sand.

BUCK: ...and she and I uncovered him together, um, just to kind of see what he would do. She wanted it to be us at the same time, uncovering him. So we found him. And when we found him, you know, we cheered, you know, we found, we missed you. And he jumped his little guy up and down on the, um, the mom that the therapist was holding. I mean, just jumped on her, smashed her and everything. And then he went to my character and asked for a kiss hand because there's a book, um, called the kissing hand and it is about...

That’s a book about a momma raccoon who loves her kids and she’d kiss the palm of their hands when they were anxious or missed her. Buck read that book every night to her children.

BUCK: And so I would give him a kiss hand every night, and then every morning on his way to school, he'd ask for a kiss hand. And so it just kind of made it very clear to us, like where his anger was actually directed, because we weren't completely sure at first. Um, but it was just, I mean, being feeling abandoned and like people didn't want him, like, that was all revealed in that sandbox that day.

JR: That’s the kind of support foster and adoptive parents receive from Catholic agencies. It’s a complex, all-encompassing partnership. Buck says she’s witnessed what drives these caseworkers; their faith. It isn’t just a job. As for the “other side” of this debate, about LGBT rights? Buck gave a thoughtful take on the stance of CSS:

BUCK: They don't preach at anybody who comes in their door. They don't expect anybody to, um, you know, follow their belief system. But that belief system does not go away just because, you know, they're working with the system. They're saying, listen, we have a conflict of interest. It would probably wouldn't be best if we worked together. So I'm going to give you the names and numbers of places that would be a better fit for you. I think it is the most fair response that they can give. I think it’s the most fair response they can give.

Fairness. It cuts both ways. But we’re still figuring out what that means and how it works. Let’s go back to the Catholic agency in Philadelphia, CSS. It lost in lower courts, twice. So CSS appealed again, to the court of last resort. Once the Supreme Court accepted the case for review, reams of friend-of- the-court briefs filed in. Thirty-four for CSS, in support of religious liberty. Forty-six for Philadelphia, in support of the city’s exclusion of CSS over its SOGI rules.

MR: One of the briefs in support of Philadelphia came from Lawrence Sager, a professor of law at the University of Texas. I’d heard him speak at a seminar about LGBT rights, advocating for a doctrine of law called “the doctrine of dignitary harm.” That’s the idea of injury based on intangible things, like damage to a person’s reputation or emotional distress. Sager said that’s the kind of harm LGBT people endure when religious people refer them elsewhere for services.

I raised my hand and asked: What about the dignitary interests of religious people, forced to do things that violate their beliefs, their conscience? To demand they instantly reverse all that they’ve been taught? I used the example of the 70-something Washington florist who declined to create a custom floral arrangement for a same sex wedding. I asked, isn’t it odd to argue one side’s dignity is harmed, when the other side’s is, too? Here’s how Sager answered. Sager thinks this woman’s been in business for years and the times change; society can say these are the rules of civil, open and fair commerce. She’ll retire soon anyway, he says, so that’s not a good basis on which to decide these cases.

JR: So let’s home in on the doctrine of dignitary harm, in this case, taking seriously one kind of harm and ignoring others… like the conflation of race with sexual orientation. Dignitary harm is one of the primary arguments used in the Fulton case. Here’s how the lawyer for the city, Jane Istvan put it before the appeals court panel:

ISTVAN: We also address in our brief, the stigma point, and the stigma, and just want to emphasize the stigma isn't just to adults, as the commissioner explained very eloquently during the hearing. It's a stigma that we have to be concerned about with respect to the LGBT youth in our care, because it sends a message. We're okay with you now. We're protecting your rights now. But when you grow up, we're going to contract with someone who assesses that you're not good enough to have a family.

MR: Some families rarely mentioned in this debate already get that message: the biological parents of a child placed into foster care. We’ve already heard about some tragic backgrounds. But sometimes the parents aren’t like the ones we’ve heard about. Sometimes, the situation doesn’t arise from abuse or neglect. Some parents make the excruciating decision to place their child into foster care until they can get back on their feet— physically, economically, or emotionally.

John Eidsmoe is a lawyer with the Foundation for Moral Law. He filed a friend of the court brief in support of CSS.

EIDSMOE: Many of them that are using Catholic Social Services will be Catholic families. And it can be very devastating to that family if for a period of maybe several months or several years, their child has been in the home of a same-sex couple that will be role modeling and also probably teaching a very different view of marriage and family relationships and what that family holds and what the family's church teaches.

JR: Eidsmoe reached back to the beginning, the very beginning, to help us understand the role and rights of parents.

EIDSMOE: Well, the right of parents to control the upbringing, the education of their children we think goes right back to the garden of Eden with Adam and Eve. We think that governance really begins with the parent. And in fact when we read in the 10 commandments "Honor thy father and thy mother," we think that the whole idea of governmental authority in general comes out of that commandment.

So the question arises again: whose dignitary harm counts most? Rick Claybrook is a lawyer who filed another friend of the court brief on behalf of Concerned Women for America (among others) in support of CSS. He argues for a deep balancing of rights; private and public.

CLAYBROOK: The weight of the private interests entails what we've been talking about: there's a, how long has that right been acknowledged under our common law tradition? Whether the Constitution talks about it explicitly. Whether it's reinforced by other fundamental rights for the public interest, a similar analysis of how fundamental the state's compelling interest is in the case. If you're trying to protect an interest, like the City of Philadelphia is here, the harm involved has to be something that is tangible. It can't just be hurt feelings.

A court has yet to answer the question. It’s being battled out in myriad other ways. It’s come up over and over again as newly claimed rights conflict with established rights. Back to the appeals court. Listen for the foreshadowing of the way the Supreme Court would eventually decide this case. Here’s an exchange between Judge Ambro and Jane Istvan, lawyer for the city. He takes up the perspective of CSS.

AMBRO: I mean, I think the argument is being made is they are being put to a Hobson's choice, they have to refrain from conduct that's mandated by sincerely held religious beliefs, or engage in conduct or expression that violates the tenants of their faith.

ISTVAN: But as you pointed out yourself to Judge Ambro, this is in the context of a contract, no one's forcing them to do this. They can simply walk away from the contractors, they can persuade us that we're wrong...later...It's essentially a self imposed burden in terms of in terms of endorsing marriage, where the state itself doesn't require that.

MR: The straightforward contract analysis. The city is hiring for some work to be done. CSS wants to do it? Then abide by the terms the city lays out. Simple enough. One judge asked why CSS can’t just do the home study evaluations with a caveat in it that says “we don’t believe the adult relationships in this house comport with the tenets of our faith. We are doing this pursuant to a contract only.” Windham, lawyer for CSS, had a ready reply.

WINDHAM: What the city is asking Catholic to do is to take an action and make a written certification which is inconsistent with Catholics religious beliefs. I'm not aware of any precedent out there that says it's okay for the government to restrict your religious exercise and burden your religious exercise pursuant to a non neutral non generally applicable law as long as you say okay, it's just because the government made me do it.

JR: All this happened at the appeals court, where CSS lost the case. So now we turn to the Supreme Court.

ROBERTS: We’ll hear argument today in case number 19-123, Fulton versus City of Philadelphia.

MR: Oral arguments by phone on November 4, 2020 had plenty of fireworks, too. Chief Justice Roberts quickly nailed the problem.

ROBERTS: This is a case involving free exercise rights, but they’re in tension with another set of rights, those recognized in our decision in Obergefell.

Free exercise of religion under the First Amendment, adopted by Congress in 1791 after years of debate. The right to same sex marriage created in 2015 by five justices of the Supreme Court. That’s the Obergefell decision. Justice Samuel Alito made a prediction in his dissent in Obergefell: “Today’s decision … will be used to vilify Americans who are unwilling to assent to the new orthodoxy.”

Justice Alito warned against the conflation of race with sexual orientation. Quote: “The implications of this analogy will be exploited by those who are determined to stamp out every vestige of dissent.”

JR: Echoes of that concern soon arose during oral argument in the Fulton case. This time, a different lawyer argued for the city of Philadelphia at the high court, Neal Katyal.  He mentions F-C-A. That’s the initialism for foster care agency.

KATYAL: The City's point is that when you enable an FCA to discriminate on the basis of orientation, that will stigmatize the youth. That is a compelling interest. LGBT kids are an outsized number of people in the foster care population, and it'll undermine the ability of the program to operate.

Lori Windham stayed on the case from beginning to end. She argued from a both/and perspective, rather than an either/or.

WINDHAM: Respondents act as if this is a zero-sum game: Either LGBTQ couples can foster, or Fulton and CSS can. But the law and decades of experience say otherwise.

MR: Katyal for the city brought it back around to the money trail. The city gives millions of tax dollars to CSS to carry out its foster care work. Is it really so much to ask that CSS serve same sex couples in return? Windham pointed out that Katyal had it backwards.

WINDHAM: The fact that CSS carries out other ministries and provides services at a loss, subsidizing the City, does not change the fact that the City is trying to extinguish this ministry.

Those other ministries that subsidize the city include meals for the homeless, stocking food pantries, and more, all in addition to foster placement.

JR: Then there’s the other issue that always comes up with first freedom cases. That is, the level of scrutiny the court should use. The highest level is called strict scrutiny; it requires the government to have a compelling reason to infringe our rights and it must use the least restrictive means to achieve it. Compelling reason, least restrictive way.

During oral argument, Justice Elena Kagan questioned the lawyer who argued on behalf of the federal government, in support of CSS, Hashim Mooppan. Listen to this exchange:

KAGAN: Do you think there's a compelling state interest to want to eradicate discrimination against gays and lesbians? Is that a compelling state interest?

MOOPPAN: So we're not denying the significance of that interest in the abstract. What we're saying is that --

KAGAN: Is it a compelling state interest, Mr. Mooppan?

MOOPPAN: Well, Your Honor, we haven't taken a position on that question because the question in this case is whether the City of Philadelphia has a compelling interest. And the City of Philadelphia does not because they have undermined that interest by recognizing a series of exceptions.

MR: And that turned out to be the lynchpin around which the eventual decision revolved: those exceptions. The city in theory could make exceptions to its “generally applicable rules.” That’s a no-no if you claim a rule is neutral on its face, applied to everyone the same way.

As an example, Philadelphia could consider the disability status of potential foster parents, even though disability is a protected characteristic under federal law. Exceptions like that undermined the city’s argument that it could not make an exception for religious beliefs. We’ll come back to this a little later, but for now, let’s think about the broader balancing act the justices had in mind. Justice Brett Kavanaugh brought it back around to the way the Chief Justice started:

KAVANAUGH: It seems like Philadelphia created a clash … and was looking for a fight and has brought that serious, controversial fight all the way to the Supreme Court. But we need to find a balance that also respects religious beliefs. That was the promise explicitly written by the Court in Obergefell and in Masterpiece … And what I fear here is that the absolutist and extreme position that you're articulating would require us to go back on the promise of respect for religious believers.

JR: Yet lawyer Katyal for the city argued that a win for the Catholics in this case would lead to inter-denominational feuding. Maybe Catholics will refuse to certify Buddhists or Baptists. Why pit religion versus religion? That didn’t seem to ring true to Justice Samuel Alito:

ALITO: If we are honest about what is really going on here, it’s not about ensuring that same-sex couples in Philadelphia have the opportunity to be foster parents. It’s the fact that the city can’t stand the message that Catholic Social Services and the Archdiocese are sending by continuing to adhere to the old fashioned view about marriage.

MR: Here’s an oddity. The city mostly argued this as a straight up contracts case. Jane Istvan, the city’s lawyer, explains it:

ISTVAN: So in our view, when you fill out that piece of paper, you're simply telling us under state law requirements, not under church doctrine, this family's qualified to care for children, for you, for your children. To us that doesn't really involve a religious conflict, but CSS obviously feels differently.

JR: And one of CSS and the foster moms’ primary arguments was this is straight up government infringement on religious exercise. Their lawyer, Lori Windham:

WINDHAM: And now the city of Philadelphia is picking sides. It's saying that there's one right set of beliefs about marriage and what that is. And if you don't go along with the city's version of those beliefs, then you can be excluded from finding homes for children in the city's foster care system.

Interestingly, the court decided unanimously in favor of CSS but it used the very analysis the losing side presented, the contracts analysis. But it used that analysis just barely: it hinged on that narrow sliver of exceptions to the rule. Now, the city had argued those exceptions didn’t really matter, because no exceptions had ever been made in reality. It only possessed theoretical power to make an exception.

MR: To flesh out the opinion, I called up Douglas Laycock. He is a professor of constitutional law at the University of Virginia and one of the leading experts in the field. He also filed a friend of the court brief in the Fulton case in support of CSS and the foster moms.

LAYCOCK: Well, the liberals join the Roberts opinion. It's unanimous as to the result. And I think that's a function of Roberts deciding the case so narrowly...

He says this is an important victory for religious liberty, regardless of the narrow reasoning.

LAYCOCK: The opinion actually says that Philadelphia's policy of requiring all foster parent certifiers to serve same sex couples without discrimination, burdens the religious liberty of Catholic social services. The requirement is not a neutral and generally applicable rule because it allows for possible exceptions.

But why didn't the court just go further? Just resolve all of the pending cases in lower courts battling over this same thing. Laycock:

LAYCOCK: What the Supreme Court does is decide cases. And when it decides a particular case, it makes a rule for that case, that will typically cover all similar cases, all cases that present the same issue and can't be distinguished from the one that’s decided.

JR: Okay, so the Supreme Court prefers to decide small things when it can and does so in an incremental fashion. But one of the explicit questions the justices agreed to review was whether to overturn Employment Division v Smith, the 1990 case that bound the appellate judge panel in Fulton. The case said if a law that burdens religion is neutral, and generally applicable, there's no judicial review.

MR: Many people see that decision as an obstacle to religious freedom. Yet the justices couldn’t muster a majority to throw it out, even with a conservative majority on the bench.  Professor Laycock reminded us of who authored that Smith case: the conservative hero, the late Justice Antonin Scalia.

LAYCOCK: And it wasn't that Scalia was hostile to religion. He was a devout Catholic. He was hostile to judges deciding important questions. He didn't want judges to decide when the state's interest was compelling enough to justify a burden on the free exercise of religion. And so, what has happened in the ensuing 30 years is that advocates for religious individuals and groups have argued, Smith was wrong.

JR: The 9-0 decision meant the justices agreed on the result, finding the city burdened religious freedom with the way it carried out its contracts with foster agencies. But the justices did not agree on the reasoning to reach that unanimous result.

MR: That’s an understatement! Justice Samuel Alito penned an epic, 77-page long concurring opinion, joined by Justices Clarence Thomas and Neil Gorsuch. Other justices filed concurrences of their own. These justices are champing at the bit to overturn Employment Division v Smith. But they couldn’t do it.

LAYCOCK: So the majority written by Chief Justice Roberts is written within Smith. It says this rule is discriminatory, it’s not generally applicable, therefore, has to be justified by compelling interest. What Alito wanted to do was, nevermind all that. Smith was egregiously wrong from the beginning, and we should throw it out...

But if a majority of justices don’t actually like the Smith decision, why didn’t a majority get together to overturn it? Why did they only agree on that slender reed of “exceptions to the contract?”

LAYCOCK: So when we get to Fulton now there's a bigger conservative majority. But you know to get a unanimous result the liberals agree with the narrow Roberts opinion. If you read Justice Barrett's opinion, she thinks Smith was wrongly decided. She thinks it should probably be overruled. But she's very concerned about what to replace it with.

JR: Several court watchers predicted the city will just rewrite the SOGI rule without any exceptions, thereby resolving the Supreme Court’s narrow objection to them. And then the City can go back and cut CSS off again. Laycock says it’s not as easy as that.

LAYCOCK: Usually, in these cases, the reason there's some secular exemption is that there's some interest group that is powerful enough to keep that exception, or some policy reason why the state thinks it has to have that exception. And so the government is forced to what maybe it was a pretty difficult choice.

MR: So there it is. A win for Catholic Social Services, a win for Sharonell Fulton and the other foster mothers who’ve been working together for decades. But not a big win. Not as big as many had hoped for. Times have changed.

JR: It’s not only the times that have changed; so have the people in power, including the justices on the Supreme Court.

LAYCOCK: When Jack Phillips’s case, the wedding cake baker, when he got up there, Justice Kennedy was still in the court. And Justice Ginsburg was still in the court. Kennedy has written all the important gay rights opinions in the Supreme Court's history.

Other amicus briefs contained interesting perspectives that I hadn’t thought about. Rick Claybrook filed one of them. He led a group of lawyers writing for several organizations in support of CSS.

CLAYBROOK: What we were particularly concerned about in this case is that just calling something discrimination not be regarded as a shibboleth, such that the government always wins as long as they say something is discriminatory. The term discrimination has a pejorative meaning for many people. And so they would automatically say, no, it's wrong to discriminate. On the other hand as we pointed out in the, in our brief, when you use the word "discriminating," same base word, people think positively about that. 

JR: Lori Windham, the lawyer for CSS, picked up on the contemporary use of the word “discrimination” and took it where it is likely to lead:

WINDHAM: I can tell you where this goes, because we've already seen it start to happen. There's a case going on in Washington state right now. And I know WORLD has covered this case with grandparents who wanted to foster and perhaps adopt their granddaughter, who was in foster care. This girl's an infant. And when the grandparents went in to try and get their approval to become foster parents, they were asked if they'd support a hypothetical future gender transition when this girl was a teenager. And they stated their religious beliefs on that, that they would love her and care for her, but they wouldn't support it. They could not in good conscience support a gender transition for a teenager. And they were denied a foster care license and denied the ability to care for their own granddaughter because of their beliefs. If you say that it's discrimination to hold those beliefs and to follow them in religious ministry, that is where that goes.

MR: For her part, lawyer for the city, Jane Istvan, doesn’t want to cast this dispute as “ religion v LGBT.” Back to our phone call.

ISTVAN: I feel very strongly about this. I push back on the premise of people who see these as two mutually exclusive communities. That there's an LGBTQ secular community, and there's a religious community. I think this case bears that out. That’s simply not the case. There were plenty of religious groups that supported the city's position that non-discrimination requirements, including LGBTQ non-discrimination requirements, are really important.

John Eidsmoe, whom you heard from earlier with Foundation for Moral Law, doesn’t disagree with that.

EIDSMOE: We have never said that all religious people feel as we do. And we don't deny that many in the gay community are very religious people. All we are saying is their religious beliefs on this issue at least differ from ours. And to say some religious people have no objection to same sex marriage, therefore nobody's objection to same sex marriage can be a sincere religious conviction? That simply isn't logical.

It’s a reality that many Catholic agencies have closed down under pressure to abide by SOGI rules from local or state governments: the District of Columbia, the state of Illinois, the cities of Boston and San Francisco, shut down or significantly reduced because they couldn’t in good conscience bend to the pressures to conform to behaviors the Bible doesn’t condone. But other agencies, the ones in Michigan and in Philadelphia, have fought. And for now, they have won.

For Sharonell Fulton, the Supreme Court decision means she can go back to doing what she believes God wants her to do, and work with Catholic Social Services to do it.

FULTON: It's essential for a foster parent to work with an agency of their choice. And if it is a religious person, they should have the freedom to choose the agency that they want to work with to continue the values of their faith. I believe that we need more agencies to support the children and take care of them, not less. If they don't want to place any more children with Catholic social service, who's it gonna hurt? The children. That's where my heart is. The children.

MR: Legal Docket is produced by the creative team at WORLD Radio. I’m Mary Reichard.

JR: And I’m Jenny Rough. We’re the hosts each week.

MR: Our script editor is Nick Eicher. Technical engineer is Rich Roszel, and our producer is Paul Butler.

JR: We want to give credit to the people and organizations who provided time and resources to help us tell this story: Lori Windham, Jane Istvan, Melissa Buck…

MR: John Eidsmoe, Rick Claybrook, Douglas Laycock, Beckett Law, the United States Court of Appeals for the Third Circuit, and Supremecourt.gov.

JR: We’ve been so encouraged by the ratings and reviews you’ve left for us! We’re a small team competing with some really big players!

MR: So if you haven’t left a review yet on whatever platform you use, would you consider doing that right now? It helps others find us, and gets the word out about this very special podcast.

WORLD Radio transcripts are created on a rush deadline. This text may not be in its final form and may be updated or revised in the future. Accuracy and availability may vary. The authoritative record of WORLD Radio programming is the audio record.


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