Elections come and go, but Supreme Court decisions can last forever. One of those potentially pivotal cases is before the court Wednesday. A case both poignant and profound, it pits the rights of a city to enforce its anti-discrimination policies in contracting against the rights of religious groups.
On one side is the City of Philadelphia, which contracts with private foster care agencies, and as part of the contract requires that those agencies abide by the city’s ban on discriminating against LGBTQ couples. On the other side is Catholic Social Services, which contends that complying with the city’s requirement would violate its constitutional right to the free exercise of religion.
Philadelphia has protective custody of about 5,000 children who have been abused or neglected. The city contracts with private agencies to care for these children in group homes and to certify, supervise, and place children in individual foster care homes. Among the 30 private agencies that do this work is CSS, affiliated with the Catholic archdiocese, which has contracted with the city for these services for more than 50 years.
But in 2018, the Philadelphia Inquirer disclosed that CSS did not certify and place children in the homes of same-sex couples.
The city then stopped paying CSS for placing more children in private homes, though it continues to pay for fostering children already placed in the care of CSS families, and for operating group homes and providing other services where there is no discrimination problem.
Can a foster parent be excluded from consideration?
CSS and two Catholic foster parents sued, contending that the city was violating the Constitution’s protection for the free exercise of religion. Two lower courts ruled in favor of the city, and CSS appealed to the Supreme Court, which hears arguments in the case Wednesday.
The two parents who joined the CSS suit are single mothers, both African American, both Catholic. One, Sharonell Fulton, has fostered 40 children over 25 years.
“The biggest thrill that I get is when they all sleep and I can walk through and look in their little faces and check their dirty hands,” she said. “And I say … I got this, this is what I want to do. And I wouldn’t be able to do it without Catholic Social Services.”
The other, Toni Simms-Busch, has fostered five children, and through fostering has adopted brothers who are now 2 and 4. For Simms-Busch, who had worked with CSS as a child advocate, fostering through CSS was a “no-brainer.” She says that there simply are “no other agencies that hold the same values and beliefs and religious foundation as Catholic Social Services.” CSS is there when she needs them, she says, morning or night.
There are, of course, other wonderful foster parents who are not in the CSS family. Among them are same-sex married couples like Lou Growmiller and his husband, Michael, who have been together for 15 years and fostered children over a 10-year period. Through their fostering experience, they have reunited one child with her parents the day before Christmas, and have adopted two — a girl, now 9, who they brought home from the neonatal intensive care unit as an infant, and a boy, now almost 7.
Because Lou Growmiller, a social worker, oversees one of the largest adoption and foster care agencies in the city, he and Michael decided to work through an agency just outside Philadelphia. They see themselves as leading members of their community. Lou is now on the PTA board of his children’s school and he views the CSS refusal to work with gay couples as making no sense when the need for foster parents is so great.
Why, he asks, “would that be a reason to deny people to be a temporary safe haven to children, vulnerable children and kids who need it?” Of course, CSS sees the city’s refusal to let it place more children in individual foster homes as equally nonsensical.
Is the city discriminating against Catholics?
There are basically two legal questions before the Supreme Court. First, whether Philadelphia’s decision not to renew one of its contracts with CSS violates the First Amendment guarantee to the free exercise of religion.
“The City of Philadelphia is telling [foster parents] it will not place any more children in their homes because they’re Catholic and they chose to partner with Catholic Social Services,” says lawyer Lori Windham, of the Becket Fund, who will represent CSS in the Supreme Court on Wednesday. Windham adds that “at bottom this is about the City of Philadelphia trying to exclude Catholic Social Services from work it’s been doing for two centuries.”
“Nothing could be further from the truth,” counters lawyer Neal Katyal, who will represent the City of Philadelphia in the Supreme Court. “We adore CSS. We’ve been partners with them for years and years, and indeed right now we’re giving them over $17 million a year in contacts” for group homes and other services, he says.
That said, however, the city has refused to renew the $2.9 million contract for future home foster care placements by CSS. As the city sees it, CSS has violated the terms of its contract by its policy of refusing to consider same-sex married couples for placement.
“You can’t on Monday sign a contract that says we won’t discriminate and on Tuesday go ahead and discriminate,” says Katyal. And he notes that the Supreme Court has long said governments are at the apex of their power in contracting for goods and services.
CSS explains that it would be happy to refer same-sex couples to other agencies, and that there are 29 others operating in Philadelphia. In addition, CSS maintains that no gay couple has even approached CSS for foster care home placement, prompting Katyal to respond that “the National Baptist Association points out that if one of the agencies had a sign saying, ‘No Baptists allowed,’ it would be cold comfort to those folks who say, ‘Oh, you could just go somewhere else.’”
Seeking the reversal of a 1990 Scalia decision
In 1990, the Supreme Court ruled that when the government has a “generally applicable” law or regulation and enforces that law neutrally, the government’s action is presumptively legitimate even if it has some “incidental” adverse impact on some citizens.
The court said that an individual’s religious beliefs do not excuse him from compliance with an otherwise valid law prohibiting conduct that government is free to regulate. Allowing exceptions to every state law or regulation affecting religion, the court said, “would open the prospect of constitutionally required exemptions from civic obligations of almost every conceivable kind,” from compulsory military service to vaccination requirements, and child-neglect laws.
The author of that opinion was the late Justice Antonin Scalia, a conservative icon and a devout Catholic. Which leads to the second major legal question before the court — whether the justices should, as CSS is urging, overturn Scalia’s decision.
CSS maintains that the decision should be reversed because the non-discrimination provision in the Philadelphia contract is unconstitutionally forcing the agency and its clients to endorse same-sex marriage, in violation of their faith.
As Toni Simms-Busch puts it, “It is taking away my right as a religious person, as a person of faith” to “foster or adopt through an agency who has a shared belief.”
Not true, says Katyal, the lawyer for the city. Philadelphia continues to pay for foster children already placed by CSS in homes like Simms-Busch’s. “The one thing that we aren’t going to do,” explains Katyal, “is to allow them to screen new parents based on their discriminatory policies.”
Has Philadelphia targeted CSS for exclusion?
CSS contends that the city has, in essence, targeted CSS because of its religious beliefs, and points to a comment made by the mayor. But Katyal counters that the mayor had nothing to do with the city’s foster care contracts, and that stray political comments here were irrelevant, especially when compared to President Trump’s comments about Muslims, which the Supreme Court ignored in upholding the travel ban.
There simply is no hostility to CSS, Katyal contends, and the proof of that is that the city has not ended its other contracts with CSS. Nor, he argues, is the certification process undertaken by CSS a religious endorsement of prospective foster parents.
“All they have to do is a checklist and say, is this family is suitable … to be foster care parents? They don’t have to approve them in the eyes of God,” Katyal argues. He maintains that CSS has “manufactured some sort of tension between their obligations under state law and the contract” to certify and supervise foster parents. “There’s simply no conflict, and that’s the easiest way for the court to resolve this case,” Katyal says.
That’s not how Mark Rienzi of the Becket Fund sees things. The state law and the city contracts are not neutral, he maintains. Yes, he says, if you have 10 stores you can go into, and you choose one, that choice would not normally raise the question of the free exercise of religion. “But if you’re being excluded from one specifically because of the religious exercise that’s going on there, which is the case here, then I do think that is a free exercise problem” he says.
Several of the Supreme Court’s most conservative justices have in fact urged revisiting Justice Scalia’s 1990 decision. And the Court’s newest Justice, Amy Coney Barrett, served on the board of her children’s private religious school, which, according to the Associated Press, did not admit the children of same-sex couples.
Revisiting LGBT versus religious rights
In the last analysis, Wednesday’s case picks up on the question the Supreme Court ducked two years ago in the case of a Colorado baker who refused to make a wedding cake for a gay couple. The court in that case punted, ruling that the Colorado Civil Rights Commission exhibited hostility to religion in considering the baker’s case. But the court did not say whether the state’s non-discrimination provision would violate the baker’s rights without that hostility.
That is the question that hangs over the Philadelphia case. And if the court decides to overrule Justice Scalia’s 1990 precedent, it would almost certainly accelerate the conservative court’s trend toward greater and greater deference to religious rights, likely at the expense of other rights and values, including laws that bar discrimination.
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