Court should uphold nondiscrimination in government contracts

The latest legal clash over religious objections to same-sex marriage and nondiscrimination policies that protect the LGBTQ community is being fought in a particularly sensitive arena: the government’s foster care system. In many states and in many social services contexts, government contracts with religiously affiliated organizations are common and effective. A constitutional model for such public-private partnerships has long existed that serves the public interest. But whether that model is sustainable may depend on how the Supreme Court rules on a religious organization’s effort to alter the terms of a government contract that prohibits discrimination based on sexual orientation.

On November 4, during Justice Amy Coney Barrett’s first week on the job, the Court heard arguments in Fulton v. City of Philadelphia. It is an important religious liberty case that addresses how governments partner with faith-based groups to provide services. The case was brought by Catholic Social Services (CSS) and two foster parents with whom they had worked. They sued the city of Philadelphia after the city ended and refused to renew CSS’s “foster family certification” contract — a contract to recruit, screen, train and certify foster families with whom foster children could be placed. CSS and the foster parents claimed a violation of their free exercise of religion.

Philadelphia’s Fair Practices Ordinance prohibits discrimination based on certain protected categories, including race, religion and sexual orientation. The city says that the ordinance applies in this case to prohibit discrimination in foster family certification without exception. To clarify the issue, the city now includes a specific nondiscrimination statement in the agreement each contracting agency must sign. While CSS is a reputable contractor that has successfully provided such family services for the city for many years, it refuses to screen same-sex couples based on its Catholic religious beliefs. In response, Philadelphia did not renew its foster family certification contract with CSS, though CSS continues to receive $26 million under other contracts to provide other social services.

Both the district court and the 3rd U.S. Circuit Court of Appeals ruled against CSS, finding that neither the city’s policy nor its enforcement discriminated against CSS in violation of the Free Exercise Clause. Instead, they found the policy was generally applicable (applied to all contractors) and applied neutrally to all contractors (no exemptions were granted). The Supreme Court granted review of the case, not only to decide whether the Free Exercise Clause is violated when a government contract requires actions that contradict the agency’s religious beliefs, but also whether the Court should revisit its decision in Employment Division v. Smith, the Court’s 1990 case interpreting the Free Exercise Clause. At the Supreme Court, the U.S. government filed a brief in support of CSS.

BJC filed a friend-of-the-court brief in support of Philadelphia. The brief recognizes that religious institutions that participate in government-administered social programs, such as foster care services, perform an immensely valuable function. Nonetheless, when a religiously affiliated organization voluntarily chooses to contract with a government agency to perform functions on behalf of the government with government money, the organization is not entitled to displace the government’s criteria for performing those functions and apply their own religious criteria. We were joined by the Presiding Bishop of the Episcopal Church, the General Synod of the United Church of Christ, and the Evangelical Lutheran Church in America on our brief.

Importantly, and as BJC has argued in other specific contexts, the government’s interest in prohibiting discrimination on the basis of sexual orientation is similar to its interest in prohibiting discrimination on the basis of religion. Here, nondiscrimination policies advance the cause of religious liberty by recognizing individual dignity and allowing faith-based organizations to participate in social services on equal footing. As our brief explains, the fact that other contractors are willing to serve someone does not remove the stigma of being denied service based on one’s religion or other protected characteristic.

Allowing the views of religious groups to set public policy rather than the government may mean that public entities will decide to simply perform these services themselves. That is a perfectly constitutional decision, but it gives fewer opportunities for private agencies to perform this type of religiously meaningful work.

During oral arguments, which were held telephonically and live-streamed on C-SPAN, attorneys on both sides argued that the Supreme Court did not need to overrule Smith in order to decide the case in their favor. At least four justices asked questions that pointed to the difficulty of limiting the scope of a religious exemption without impacting nondiscrimination based on other characteristics, such as race, gender, disability and — most importantly for religious liberty — religion. Chief Justice John Roberts and Justice Clarence Thomas tried to draw out possible distinctions between the government’s power to set contract terms for the administration of its work and the power to regulate religious organizations without regard to a government service. In addition to Smith, justices were concerned with the implication of its more recent decisions in Obergefell v. Hodges (2015), where the Court ruled that the constitutional right to marriage extends to same-sex couples, and Masterpiece Cakeshop v. Colorado (2018), where the Court sidestepped the question of whether private businesses could refuse to serve customers in a legally protected category based on the business owner’s religious beliefs. At the beginning of this term, before Justice Barrett officially joined the Court, Justices Thomas and Samuel Alito publicly advocated that Obergefell should be revisited.

Most striking was how the arguments seemed to reflect the deep political and religious differences over same-sex marriage and the particularly intense feelings of some conservatives being out of favor with prevailing public sentiments. The attorney for the U.S. government repeatedly resisted answering Justice Elena Kagan’s question about whether the state had a compelling government interest in eradicating discrimination on the basis of sexual orientation. Justice Alito suggested with seeming disdain that the government actors were trying to impose their beliefs about sexual orientation on religious actors, which the attorney for Philadelphia firmly denied by emphasizing the government contract context.

No doubt CSS and many who support its claim are counting on a newly constituted 6-3 conservative majority to rule in their favor, building on the successful cases brought by religious claimants last term. Cases that allow the expansion of school vouchers (Espinoza v. Montana) and that generously define the ministerial exception (Our Lady of Guadalupe v. Morrissey-Berru) may bode well for them. But those cases obscure the religious privilege being asserted in Fulton of a government contractor seeking to provide government services only to those who pass its religious test.

Whether it is recruiting foster care parents, running food pantries or providing emergency shelter, the primary concern of the thousands of religious and secular agencies that partner with the local, state or federal government in providing government-funded services must be to ensure that such services are provided with integrity for public purposes and without regard to religion or other protected categories. In this case, it is the government’s responsibility to care for those abused and neglected children in its custody and to expend government resources for those purposes. Philadelphia should be allowed to seek a broad pool of potential foster parents with whom a child can be placed without being required to contract with religious entities that would subvert the government’s ability and interests.

Visit BJConline.org/Fulton for more on this case.

Holly Hollman is general counsel of BJC. This column appeared in the Fall/Winter 2020 edition of Report from the Capital. You can read the entire magazine as a PDF or as a digital flip-through edition.