Last Thursday, the U.S. Supreme Court ruled unanimously in Fulton v. Philadelphia that the city of Philadelphia improperly applied anti-discrimination laws against the Roman Catholic charity, Catholic Social Services (CSS), for denying eligibility in foster adoption to same-sex parents.
Chief Justice Roberts clarifies the tension at-hand in his delivery of the Courts opinion: Because the agency understands the certification of prospective foster families to be an endorsement of their relationships, it will not certify unmarried couplesregardless of their sexual orientationor same-sex married couples. The lynchpin issue of the case was whether the Constitution allows for a religious freedom exception to anti-discrimination laws a legal question that has become increasingly muddied in the past few decades.
This is an incredibly complex constitutional question weighed down by decades of precedent that often appears contradictory and tenuous. Additionally, the actions of Donald Trumps administration have further complicated conflicts between religious exercise and anti-discrimination laws. Lets break down the recent history of this legal question, how the Philadelphia case fits in, and what the decision might mean for Louisiana and the rest of the country.
To understand the Philadelphia case, we have to understand the relationship between Employment Division v. Smith, the Religious Freedom Restoration Act (RFRA), and Burwell v. Hobby Lobby.
In 1990, the U.S. Supreme Court ruled on Employment Division v. Smith, establishing immense precedent on the question of religious exercise. Alfred Leo Smith and Galen Black, members of the Native American Church, were fired from their counselor positions at a private drug rehabilitation clinic for religious peyote use outside of work. Their unemployment claim was denied by the Employment Division of the Oregon Department of Human Resources because peyote was classified generally as a drug illegal for possession and use.
The U.S. Supreme Court ruled in the favor of the state on the principle that the law prohibiting peyote use and possession was a neutral law of general applicability (it applies to everyone equally regardless of religious context). This verdict came to be interpreted as precedent for the prioritization of state and local power over religious practice.
The RFRA, signed into law in 1993 with popular bi-partisan support, clarified the right to religious liberty. It specifically addressed the precedent of Employment Division v. Smith stating, laws neutral toward religion may burden religious exercise as surely as laws intended to interfere with religious exercise, furthering that, in Employment Division v. Smith [ ] the Supreme Court virtually eliminated the requirement that the government justify burdens on religious exercise imposed by laws neutral toward religion.
The law acts in accordance with the precedent of Employment Division v. Smith through a two-part exception that the government only may substantially burden a persons exercise of religion, even if the burden results from a rule of general applicability if the burden (1) is in furtherance of a compelling governmental interest; and (2) is the least restrictive means of furthering that compelling government interest.
Its worth noting the language of persons here until 2014, religious exercise protections (and most other civil rights legislation) are worded in the context of rights-bearing individuals. However, the 2014 U.S. Supreme Court decision in Burwell v. Hobby Lobby threw that into question and, arguably, spurred the issue today.
The 2014 decision frames craft chain Hobby Lobby and furniture company Conestoga Wood Specialties as individuals with rights to religious exercise. Much like Citizens United v. FEC, four years prior, this decision expanded the legal definition of individual to include collective groups like for-profit corporations. This decision is incredibly controversial and many have argued that it is incoherent for regarding a group as an individual and impinges the individual religious beliefs of employees who are denied access to contraceptive health coverage, an entitlement under federal law.
The Trump Administration made great strides to further the dismantling of health care rights through the expansion of religious freedoms. In 2017, former Attorney General Jeff Sessions released a guidance titled Federal Law Protections for Religious Liberty claiming to clarify existing rights to religious exercise. The Center for American Progress found at least 87 regulations, 16 agency guidance documents, and 55 federal programs and services that this guidance could undermine. Many of which were put in place by the Obama administration to protect sexual and gender minority rights and to prevent discrimination by federally funded programs.
Weve seen this play out in healthcare. Under the Trump Administration, religious and moral exemptions were carved into the Affordable Care Act to allow employers to deny contraceptive coverage. Robert Severino, Trumps director of the Office for Civil Rights, pushed to allow for health care workers and institutions to deny health care access in conflict with their religious beliefs. Its undoubted that religious freedom is an essential part of our social fabric, but when it comes into direct conflict with the well-being of others, we have a problem.
It would appear on-face that the major question of this case is where does Employment Division v. Smith lie in all of this, and the 3rd Circuit Court of Appeals agreed ruling in favor of the city stating, religious belief will not excuse compliance with general civil rights laws.
However, the U.S. Supreme Court disagreed. Chief Justice Roberts argued that the requirement to provide services regardless of sexual orientation in Philadelphias foster care contracts permitted exceptions. Therefore, In the eyes of the court, the law was not neutral in its treatment of religion, thus Employment Division v. Smith does not apply. Despite the insistence of the concurring Justice Alito, Smith was not overturned by this decision.
This interpretation appears consistent with the law, but overlooks an important underlying factor: the nature of state foster care contracts. In Fulton v. Philadelphia, the Supreme Court padded their opinion arguing that no same-sex couples had been denied by CSS historically and that there were other agencies that would work with same-sex couples. No harm, no foul right?
Consider the case of South Carolina. The Trump administration granted a waiver requested by South Carolina Governor Henry McMaster that would allow South Carolina foster agencies (even those receiving federal funding) to not have to comply with federal nondiscrimination rules barring religious discrimination. Sure enough, Catholic mother, Aimee Maddonna, sued the Protestant South Carolina foster agency, Miracle Hill, for not working with her because of her religion. Miracle Hill, at the time, received nearly $600,000 in state and federal funding.
The real conflict at-hand seems to be striking a balance between the Courts desire to not disincentivize the work of religious charities in foster-and-adoptive care and protecting the civil rights of children and prospective parents. While contractual exceptions like the one in Philadelphia incentivize the work of these religious charities, they potentially impinge on the legal rights of those they wish to not work with, as well as the children they are tasked with caring for.
James Amato, executive vice president for CSS, confirmed this tension in a news conference by stating that his agency needs to know that it can serve those in need without government restrictions. However, its somewhat unclear how restricting their own restrictions detracts from their ability to provide comprehensive foster-and-adoptive care services for children and prospective parents, the purpose of their federal and state funds.
The case of CSS hinges on the claim that in determining a same-sex couple as an acceptable family for a foster child, they would be violating their own religious belief that marriage is a sacred bond between a man and a woman. They hold this despite being willing to place gay children in their foster-and-adoptive care program, place children with single LBGTQ individuals, and refer gay couples to other agencies.
The agency may view its certification process as a form of relationship endorsement, but whether it should or has a good legal basis to do so is another question. Its unclear whether the role of foster-and-adoptive care agencies is to approve the relationship of the parents, and if its not, it would appear that this judgment on the part of CSS lies beyond what they are federally funded to do. When we consider all other variables that go into foster-and-adoptive parent certification, we find a direct material explanation for them that stems from the well-being of the child.
Common state requirements for foster parents include a minimum age (usually 21 years of age), space in the home for suitable housing of the child, physical capability for care (including financial capacity), and passing various background checks. The city of Philadelphia advertises these conditions as requirements for foster parenting and further clarifies that, Foster parents can be single, married, divorced, any gender or sexual orientation. Foster care agencies may not discriminate in the recruitment or certification of foster parents. Louisianas guidelines are incredibly similar, but slightly more restrictive by putting a cap on the amount of children in the prospective home at five children.
All of these requirements, in some way, directly benefit the child and are there for their protection. CSS may not feel that same-sex couples are beneficial parents for children, but that judgment is paled by the vast scientific consensus that same-sex couples are perfectly competent parents. CSS claims it would work with a single gay or lesbian parent, but what if that individual was to get married after adoption? Would CSS confiscate the child? This may seem like a reaching hypothetical, but the gaps in CSS logic force us to ask these questions because the well-being of children is at stake. These restrictions disincentivize potential parents and anything hindering the potential of children in the system should be scrutinized.
Many conservative pundits have argued that forcing religious foster-and-adoptive care agencies to work with same-sex couples is bad for children because it will force agencies to close out of principle. This notion should be dispelled and is a dangerous logic exhibited in much of the Supreme Courts opinion. We dont need religious agencies, they need us. The government funds them to place displaced children in good homes, not to exercise religious judgments that exacerbate the overburdening of the foster-and-adoptive care system. Studies from the Center of American Progress show unique drops in the percentage of homes working with agencies in states that have welcomed religious exemption laws. CSS may have never turned away a same-sex couple, but agencies have done so in Texas and will continue to do so. At the end of the day, these exemptions create a chilling effect that only hurts displaced children.
Conservatives argue that religious agencies have been central historically in foster-and-adoptive care and should be preserved, but this is a glaring is-ought fallacy. Groups like CSS argue that their religion compels them to do this work, hence why they should be supported by the government. This mistakes the nature of the first amendment and dehumanizes displaced children. Child care and placement is an essential service and religious charities are not entitled to children to place if they cant do so in a way that respects the rights and well-being of prospective parents and children. Insofar as they refuse to do so, those federal and state funds would be better spent supporting secular agencies that dont discriminate.
If we look back to the text of the RFRA, burdens on religious exercise are only justifiable if they serve a compelling government interest. If the efficient and just placement of displaced children and the enforcement of anti-discrimination laws is not a compelling government interest, I dont know what is. The government should give as much respect to anti-discrimination laws as it does to laws banning peyote. The current law gives baseless entitlements to religious organizations at the expense of individual rights and debases the foundation of anti-discrimination law. Its hard not to view this case as a further consequence of the sordid legal precedent set by Hobby Lobby and post-term step in the Trump movement to champion religious rights at the expense of anti-discrimination laws.
As residents of Louisiana, a state with 3,561 children currently in foster care services, many still searching for adoptive families, we should care about this. There are faith-based foster-and-adoptive services in Louisiana and no comprehensive statewide nondiscrimination protections for gender and sexual minorities in Louisiana. The court assures us that the precedent of Fulton wont affect much due to specificity, but tellingly CSS lawyers say otherwise. Luckily, Judge Edward Rubin ruled that Louisianas prohibition on same-sex couple adoption was unconstitutional in Costanza v. Caldwell and we dont currently have a religious exemption law like Texas or Mississippi. We should remain vigilant to prevent such a law from being advanced and continue to fight for strong nondiscrimination laws for gender and sexual minorities. Do it for the kids.
