Supreme Court helps foster families, but could have done more

Sharonell Fulton was ecstatic Thursday as she celebrated a Supreme Court ruling protecting her ability to continue to work with foster children in Philadelphia through Catholic Social Services (CSS).

“I am overjoyed that the Supreme Court recognized the important work of Catholic Social Services and has allowed me to continue fostering children most in need of a loving home,” Fulton said. “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.”

In a unanimous opinion announced Thursday morning, the court upheld the right of the historic Philadelphia social services agency to continue to participate in the city’s foster care program while adhering to its Biblical beliefs, which preclude it from placing children with same-sex couples. In his majority opinion, Chief Justice John Roberts concluded that the city’s refusal to contract with the agency unless it agreed to approve same-sex couples as foster parents violated the Free Exercise Clause of the First Amendment.

The long-awaited ruling eases the concerns of faith-based foster care and adoption agencies yet leaves important questions unanswered. The court did not overrule its much-criticized 1990 decision in Employment Division v. Smith, which concluded that laws incidentally burdening religion are not subject to strict judicial scrutiny so long as they are both neutral and generally applicable—a rule courts have often used to override religious liberty concerns and uphold broad public accommodation laws.

Roberts wrote that because the city could exempt individual agencies from nondiscrimination requirements, Philadelphia’s law was not “generally applicable” and was subject to strict scrutiny. “Where such a system of individual exemptions exists, the government may not refuse to extend that system to cases of religious hardship without a compelling reason,” he said.

The narrow nature of the holding bothered Justices Samuel Alito and Neil Gorsuch, each of whom wrote concurring opinions joined by Justice Clarence Thomas, arguing that Smith needs to go.

“This decision might as well be written on the dissolving paper sold in magic shops,” quipped Alito, whose 77-page opinion was replete with footnotes. “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.”

While the court’s newest justice, Amy Coney Barrett, joined the majority opinion, she also wrote separately to stress that she found the arguments for overruling Smith persuasive yet unnecessary. “There would be a number of issues to work through if Smith were overruled,” wrote Barrett, joined in her opinion by Justices Brett Kavanaugh and Stephen Breyer.

The court also rejected an argument that the foster care agency should be treated as a public accommodation open to all, observing that certification as a foster parent, unlike staying in a hotel or eating in a restaurant, is “individualized and customized,” a benefit “not readily accessible to the public.” That means the ruling has no direct applicability to broad public accommodation laws that LGBTQ individuals have used to bring discrimination charges against Christian business owners.

While cities could sidestep the court’s ruling by eliminating any exemptions to nondiscrimination requirements, that would undercut their flexibility to accomplish other objectives. Becket lawyer Lori Windham, who argued the case on behalf of Fulton and fellow foster mom Toni Simms-Busch, pointed in her brief to exceptions the city itself made to its nondiscrimination policy in considering disability and even race in making placements.

“Even one exception can make a law less than generally applicable, and therefore subject to strict scrutiny, if it undermines the state’s asserted interest in regulating religion,” said religious liberty expert Douglas Laycock, a professor at the University of Virginia School of Law.

University of St. Thomas School of Law professor Thomas Berg said that while Smith survives for now, five justices appear poised to overrule it at some point. Berg noted they may have that opportunity in a pending case in which an Idaho man was denied a state license required for him to work as a construction contractor because he refused to provide a Social Security number (based on his understanding of the book of Revelation).

Perhaps more than anything, the unanimity of the court may mean that Chief Justice John Roberts has not lost his ability to engineer agreement among a bench often split down a conservative-liberal divide. It also suggests that communities must accommodate those religious individuals and institutions that disagree with prevailing notions of marriage and sexuality.

“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,” concluded Roberts in a parting word to the “city of brotherly love.”