Legal Docket - Religious liberty in foster care

MARY REICHARD, HOST: It’s Monday morning. This is The World and Everything in It. Today is the 9th of November, 2020. 

Good morning to you, I’m Mary Reichard.

NICK EICHER, HOST: And I’m Nick Eicher.

As we get closer to our end-of-year giving drive in December and asking our regular supporters to renew their support for biblically objective journalism—this month, we’re encouraging first-time supporters to join us.

If you’re a listener who’s never given before, I want to challenge you to make this year the year you add your support for our unique brand of journalism.

And I’ve mentioned a family that is offering a matching gift, essentially saying, we want to make it clear we don’t expect you to give alone. We’re all in this together. We are with you. You make a first-time gift of any amount, we’ll match it, dollar for dollar.

REICHARD: Right, we’ve not done that before, but I really like how this friend made the offer—as you put it—a demonstration that we’re all in this together, that they want to get behind the effort to encourage more people to chip in a little, and the power of multiplication takes a little and turns it into it a lot. And the family offered to match up to $75,000 in new giving.

EICHER: And I have to tell you this: I received an email on Friday and I just want to give this friend a shout out. He said, I’d like to add $10,000 to the total—so the match goes even higher. So thankful for that, and I think it shows how hungry God’s people are for journalism that puts Him first and seeks to offer an alternative to biased, secularist, partisan news reporting. And if the election wasn’t an example of that, I’m not sure what is.

So please join with thousands of others who support our work: wng.org/donate—this month, we’re looking for first-time supporters. Wng.org/donate

REICHARD: Last week a full virtual bench of 9 justices heard oral argument in the biggest religious liberty case this term. The case is Fulton v City of Philadelphia. The justices conducted business by phone, as they have since May. 

That was on Wednesday. 

Two days prior, on Monday, Chief Justice John Roberts welcomed newest Justice Amy Coney Barrett.

ROBERTS: Before we commence the business of the court this morning, it gives me great pleasure on behalf of myself and my colleagues to welcome Justice Barrett to the court. Justice Barrett has taken the oaths prescribed by law and her commission will be duly recorded. At a later time we will have a special sitting to mark the occasion. Justice Barrett, we wish you a long and happy career in our common calling.

And then without further ado, oral arguments began. 

Today we’ll focus only on that religious liberty case.

The question is whether the government can require religious beliefs be dropped as a condition of participating in foster care placement.

EICHER: Here’s the background. 

For more than two hundred years, needy children found foster homes and ongoing support from some iteration of Catholic Social Services. We’ll use the initialism CSS for that, Catholic Social Services. 

Two years ago, the City of Philadelphia learned of CSS’s policy of referring same-sex couples who want to foster to other agencies. Now, not a single gay couple approached CSS for help. Yet the city stopped allowing foster children to be placed with a family endorsed by CSS because of that policy.

REICHARD: The city says the religious beliefs of CSS discriminate against people based on sexual orientation. That violates city policy as well as contract language foster care agencies sign to partner with the city to help find homes for children. 

You can hear the battle lines drawn in this from Chief Justice Roberts:

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.

And that’s it: free exercise of religion under the First Amendment, adopted in 1791, versus the right to same sex marriage created five years ago by the Supreme Court in a 5-4 ruling. That’s the Obergefell ruling.

Five justices created a collision between established First Amendment freedoms and new ideas of human sexuality.  And that decision’s been used ever since to try to shut down people with religious convictions about marriage being between a man and a woman.

CSS, Catholic Services, wants to continue its charitable mission. Attorney Lori Windham represents it and two foster mothers, including Sharonell Fulton. She’s taken in over 40 children in partnership with CSS, adopting two of them.

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. The Free Exercise Clause is at the heart of our pluralistic society, and it protects Petitioners’ vital work for the Philadelphia community.

On the other side, lawyer for Philadelphia, Neal Katyal. He mentions FCA. That’s an 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.

Katyal also mentioned that the city gives CSS millions of dollars to carry out its foster care work. So where’s the harm to CSS to serve gay couples?

But in a press conference, Windham pointed out CSS actually subsidizes the city because it provides so many services to the community, and does so at a loss to CSS. The agency spends more than it takes in to provide meals to homeless people, stock food pantries, and more in addition to foster placement. 

Now, one contention in this case is what level of review the court should use. 

When the government wants to encroach on religious freedom, it must jump a high hurdle. First, the government must show it has a compelling reason to restrict religious liberty. 

Justice Elena Kagan wanted to get to that “compelling reason.” Here she presses Hakim Mooppan, who argued on behalf of the federal government in support of CSS.

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: In the abstract, perhaps, but, on the facts of this case, the govt has undermined that interest.

KAGAN: Is it perhaps or is it yes or is it no?

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.

…Exceptions such as considering the disability status of potential foster parents. Exceptions like that undermine the city’s argument that it cannot also make an exception for religious beliefs. You can trace that argument back to a Supreme Court decision from 30 years ago called Employment Division v Smith.

That decision said it was okay to fire Native Americans for smoking peyote during Native religious practice and then deny them unemployment benefits. So long as the government applied rules about drug use across the board, those rules are “neutral and generally applied.” 

No need to consider religious exercise rights then or in this case, because everyone is required to work with gay couples. 

But Windham argued this isn’t about exceptions.  This is about government infringement on religious exercise. 

Justice Kagan took up the cause of government with Windham:

KAGAN: I mean, there are a lot of things that governments do now that traditionally were done by private organizations, religious organizations. I mean, you could go through, you know, youth homes or homeless shelters, a lot of old philanthropy is now regulated and conducted by the government. Why should that matter?

WINDHAM: Justice Kagan, because I think that really points out the question in this case: 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?

Justice Stephen Breyer thought the problem could be resolved easily: just have CSS make a note in the margins of its paperwork saying whatever it wants to say about same-sex couples. But still, go ahead and evaluate the couple.

BREYER: What is your religious objection to that? 

WINDHAM: So Justice Breyer … what the City is asking CSS to do here is to certify, validate, and make statements that it cannot make. And I’m not aware of any case where this court has said it’s okay to compel speech or coerce religious exercise as long as you can tag a disclaimer onto the end of it.

Near the end of the argument, Justice Brett Kavanaugh looked for the win-win solution in this comment to Katyal, lawyer for the city:

KAVANAUGH: It seems like Philadelphia created a clash it seems and was looking for a fight and has brought that serious, controversial fight all the way to the Supreme Court even though no same-sex couple had gone to CSS, even though 30 agencies are available for same-sex couples, and even though CSS would refer any same-sex couple to one of those other agencies. 

And to be clear, I fully appreciate the stigmatic harm. 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.

Katyal reframed the question as one pitting religion versus religion. CSS might use a victory here to refuse to help Baptists or Buddhists. No evidence of that happening, but Katyal went on to warn that a decision in this case will affect government contracts in all 50 states, and far beyond matters of only foster care. 

I think Justice Samuel Alito hit on what many people of faith think is truly the issue:

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 the city can’t stand the message that Catholic Social Services and the Archdiocese are sending by continuing to adhere to the old fashion view about marriage.

I think most justices are looking for the win-win Justice Kavanaugh mentioned.

Meanwhile, none of the hundreds of children currently in group homes or shelters is able to be placed in homes certified for foster care by Catholic Social Services. This,  even as the city put out a notice that foster homes are “urgently needed.” 

And that’s this week’s Legal Docket.

(AP Photo/J. Scott Applewhite, File) In this Nov. 5, 2020, file photo the Supreme Court is seen in Washington. 

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