Written by Don Byrd

The City of Philadelphia’s decision to halt a foster care placement contract with Catholic Social Services (CSS) – because the religious organization refuses to place foster children with same-sex couples – was upheld by the 3rd Circuit Court of Appeals in an opinion issued earlier this week. CSS challenged the city’s policy as a violation of their religious liberty rights under both the First Amendment and the Pennsylvania Religious Freedom Protection Act (RFPA) and sought an injunction to require their reinstatement, but the court sided with the city.

Specifically, the court found, with respect to the First Amendment, that the City’s non-discrimination policies were neutral with respect to religion. Here is an excerpt from the opinion:

The City stands on firm ground in requiring its contractors to abide by its non-discrimination policies when administering public services. Under Smith, the First Amendment does not prohibit government regulation of religiously motivated conduct so long as that regulation is not a veiled attempt to suppress disfavored religious beliefs. And while CSS may assert that the City’s actions were not driven by a sincere commitment to equality but rather by antireligious and anti-Catholic bias (and is of course able to introduce additional evidence as this case proceeds), the current record does not show religious persecution or bias. Instead it shows so far the City’s good faith in its effort to enforce its laws against discrimination.

As for the Pennsylvania RFPA, which arguably offers greater protection for religious exercise than the First Amendment, the court found that CSS was not entitled to an accommodation under the law because – even if CSS suffered a substantial burden under the policy – the City has a compelling interest in eradicating discrimination.

CSS is not likely to prevail on its RFPA claim because the City’s actions are the least restrictive means of furthering a compelling government interest. It is black-letter law that “eradicating discrimination” is a compelling interest. And mandating compliance is the least restrictive means of pursuing that interest.

The government’s interest lies not in maximizing the number of establishments that do not discriminate against a protected class, but in minimizing—to zero—the number of establishments that do.

The appeals court’s ruling affirms an earlier district court ruling, and may be appealed to the U.S. Supreme Court.