“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.”
The Supreme Court ruled 9-0 that Philadelphia, PA, cannot refuse to renew its contract with Catholic Social Services (CSS) because the latter won’t work with same-sex couples.
Philadelphia works with “private agencies to screen foster parents for children in need.” The contracts have “a broad nondiscrimination policy” within them. The city argued CSS violated 3.21 in the contract:
Rejection of Referral. Provider shall not reject a child or family including, but not limited to, . . . prospective foster or adoptive parents, for Services based upon . . . their . . . sexual orientation . . . unless an exception is granted by the Commissioner or the Commissioner’s designee, in his/her sole discretion.” Supp. App. to Brief for City Respondents 16–17.
CSS has had a contract with Philadelphia for over 50 years. Chief Justice John Roberts provided this important note in his opinion:
CSS does not object to certifying gay or lesbian individuals as single foster parents or to placing gay and lesbian children. No same-sex couple has ever sought certification from CSS. If one did, CSS would direct the couple to one of the more than 20 other agencies in the City, all of which currently certify same-sex couples. For over 50 years, CSS successfully contracted with the City to provide foster care services while holding to these beliefs.
Do you mean to tell me no one in Philadelphia knows about Catholic teachings and homosexuality?
Do you mean to tell me that Philadelphia officials only learned about it in 2018? That is when “a newspaper ran a story in which a spokesman for the Archdiocese of Philadelphia stated that CSS would not consider prospective foster parents in same-sex marriages.”
The Employment Division of Oregon v. Smith came up in the opinion because other courts thought that ruling should apply. In 1989, SCOTUS ruled Oregon could deny unemployment benefits to anyone fired for using peyote even if they used the drug in a religious ritual.
Justice Antonin Scalia, in his majority opinion, described the law as a “neutral law of general applicability.” The majority also decided that no one can use the First Amendment to violate Oregon’s neutral ban on peyote.
Roberts said the “case falls outside Smith because the City has burdened the religious exercise of CSS through policies that do not meet the requirement of being neutral and generally applicable.”
Since Philadelphia’s ordinance has those exemptions it cannot invoke Smith since it is not “generally applicable.”
But Roberts clinches it in his conclusion:
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. The refusal of Philadelphia to contract with CSS for the provision of foster care services unless it agrees to certify same-sex couples as foster parents cannot survive strict scrutiny, and violates the First Amendment.
In view of our conclusion that the actions of the City violate the Free Exercise Clause, we need not consider whether they also violate the Free Speech Clause.
Justices Amy Coney Barrett, Stephen Breyer, Elena Kagan, Brett Kavanaugh, and Sonia Sotomayer.
The opinion has concurring opinions:
Barrett herself wrote a concurring opinion, which was joined fully by Kavanaugh and partially by Breyer.
“As the Court’s opinion today explains, the government contract at issue provides for individualized exemptions from its nondiscrimination rule, thus triggering strict scrutiny,” Barrett wrote. “And all nine Justices agree that the City cannot satisfy strict scrutiny.”
Justice Samuel Alito wrote a concurring opinion that was joined by Justices Neil Gorsuch and Clarence Thomas. Gorsuch wrote a concurrence that Thomas and Alito joined.
Alito wrote in his concurring opinion, with Gorsuch and Thomas, that this case shows it is time to reconsider Smith. He reminds everyone about Catholic Charities not providing adoption or foster care in a few states due to insistence they help same-sex couples:
This decision might as well be written on the dissolving paper sold in magic shops. 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.21 If it does that, then, voilà, today’s decision will vanish—and the parties will be back where they started. The City will claim that it is protected by Smith; CSS will argue that Smith should be overruled; the lower courts, bound by Smith, will reject that argument; and CSS will file a new petition in this Court challenging Smith. What is the point of going around in this circle?
We should reconsider Smith without further delay. The correct interpretation of the Free Exercise Clause is a question of great importance, and Smith’s interpretation is hard to defend. It can’t be squared with the ordinary meaning of the text of the Free Exercise Clause or with the prevalent understanding of the scope of the free-exercise right at the time of the First Amendment’s adoption. It swept aside decades of established precedent, and it has not aged well. Its interpretation has been undermined by subsequent scholarship on the original meaning of the Free Exercise Clause. Contrary to what many initially expected, Smith has not provided a clear-cut rule that is easy to apply, and experience has disproved the Smith majority’s fear that retention of the Court’s prior free-exercise jurisprudence would lead to “anarchy.” 494 U. S., at 888.
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