U.S. Supreme Court hears oral argument over whether prospective foster parents can be excluded because of religion, sexual orientation

by | Nov 6, 2020

This week. the Supreme Court heard oral argument in Fulton v. Philadelphia, a case involving Catholic Social Services’ (CSS) constitutional challenge to the city’s requirement that organizations screening foster parents must comply with the city’s nondiscrimination law in selecting the pool of parents eligible. CSS argues it is entitled to an exemption from the nondiscrimination requirement because of its religious objection to allowing same-sex couples through the screening process.

[Note: To hear BJC’s Amanda Tyler and Holly Hollman offer their analysis and response to the oral argument, check out episode 2 of the new season of Respecting Religion on the BJC Podcast.]

In a brief filed with the court, BJC advocated for religious liberty for all. Requiring government contractors performing a government function to comply with nondiscrimination policies like Philadelphia’s, they argued, is a critical means of protecting religious freedom, not an unlawful burden on religious exercise. The brief emphasizes that without enforcing those policies, decisions like foster parent eligibility are subject to religious discrimination, as we have already seen in some cases. No qualified person should be excluded as a potential foster parent for a child in state custody who needs a home simply because that person is Baptist or Jewish or Mormon. And yet, CSS is arguing that the First Amendment prohibits local governments from guarding against such religious discrimination in government-contracted services.

Attorney Neal Katyal, who represents the city of Philadelphia, made this point clear in his opening remarks.

From the transcript:

[Adopting CSS’ position] would insert federal courts into contracting decisions in all 50 states and imperil government services in many spheres. It means [foster care agencies (FCAs)] could discriminate against LGBT kids or categorically against foster parents on gender or religion…. And this is not a hypothetical. The district court’s hearing revealed CSS to require a clergy letter showing foster parents were active members of a congregation. Other FCAs discriminate by religion, such as against Catholics and Jews in South Carolina. Petitioners’ rule would compel governments to permit all these practices, balkanizing foster care agencies and ending their openness to all.

During this week’s questioning, some exchanges focused on technical-sounding – but critical –distinctions, such as whether CSS would qualify as an “independent contractor” or a “licensee.” At other times, however, the conversation addressed more broadly the need to balance the religious liberty interest asserted by an organization providing government services on one hand, and the government’s interests in providing those services without subjecting beneficiaries to discrimination on the other, particularly here where the ultimate interest is the welfare of a child who is a ward of the state.

In questioning Katyal, Justice Brett Kavanaugh argued for care and respect on both sides, but falsely characterized the city’s position as failing to respect religious beliefs. As Katyal explained, it is CSS’ position that will pit religion against religion. Here is a lengthy but important exchange:

JUSTICE KAVANAUGH: It seems like this case requires us to think about the balance between two very important rights recognized by this Court, the religious exercise and belief right, obviously, in the First Amendment, and the same-sex marriage right, as recognized in Obergefell.


And it seems when those rights come into conflict, all levels of government should be careful and should often, where possible and appropriate, look for ways to accommodate both interests in reasonable ways. It’s a very — you know it’s very sensitive, controversial. There are strong — very strong feelings on all sides that warrant respect.


And it seems like we and governments should be looking, where possible, for win-win answers, recognizing that neither side is going to win completely on these issues given the First Amendment on the one hand and given Obergefell on the other.

That was the promise explicitly written by the Court in Obergefell and in Masterpiece, explicitly promised that respect for religious beliefs. 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: So, Justice Kavanaugh… First, we absolutely agree with you that these are feelings that warrant respect, and, you know, both of these rights are important, and we share that same spirit.


Second, I don’t think the framing of this as religion versus same-sex equality is the right one. The way the City sees this is actually a case about religion versus religion because, if you accept what the — what their argument is, then they’ll allow — you know, another — another FCA can say we won’t allow Baptists, we won’t allow Buddhists, or we’ll only allow those things. And in that sense, religion will be pitted against religion. Foster care agencies will be balkanized. And this will be true not just in foster care but in any number of other areas in which the government contracts.


Third, practically, I don’t think you can look at this and just say, oh, this is a small, tiny accommodation, what’s the harm in it, because any individual accommodation will look reasonable. The problem is, as Chief Justice Burger’s unanimous opinion in United States versus Lee says, once you do it for one objector, the Court’s going to be stuck doing it for all.

This case was also our first glance at the newest Supreme Court justice, Amy Coney Barrett, asking questions in a religious liberty case. One exchange was especially troubling, in which she appeared to diminish and mischaracterize the legal significance of “third-party harms” that may arise out of accommodating religious beliefs.

Here is an excerpt from that passage, during questioning of Jeffrey Fisher, who represents the Support Center for Child Advocates:

JUSTICE BARRETT: Good morning, Mr. Fisher. I have a question about something that some of the amicus briefs brought up, which was this third-party harm principle, the principle that religious beliefs can never give a believer the right to harm a third party even slightly. I’m wondering if you agree with that and, if so, if you could tell me where in law the principle comes from.


FISHER: Justice Barrett, I’m not sure that that’s true as a categorical rule. I think that, as some of the questions have pointed out this morning, when you get into situations like this, you need to balance the free exercise interests, on the one hand, against whatever the governmental interests are, on the other, at least in the abstract. …


[W]e would say there are serious governmental harms and there are also private harms. We’ve talked about people being turned away in Philadelphia and the amicus briefs tell you they’re turned away elsewhere. But, remember, there’s also a deterrent effect. If people are aware that the government program allows discrimination, they may never enter the pool in the first place. There’s no brochure that tells people, you know, this agency prefers people of this — of your kind and these other agencies prefer people of the other kind.

A decision in the case is expected by June 2021.