Latest U.S. Supreme Court Case Favors Religious Rights Over Laws Prohibiting Discrimination Against LGBTQ+, Signals Potential Expansion of Religious Rights

By Heather J. Van Meter - Bullard Law

June 18, 2021

On June 17th, in a potential expansion of religious freedom rights, the U.S. Supreme Court in the case of Fulton v. City of Philadelphia, Pennsylvania, held that the City of Philadelphia could not require Catholic Social Services, a group contracting with the City to provide foster care services for over 50 years, to certify same-sex couples as foster care providers in violation of the Catholic church’s view that marriage is a sacred bond between one man and one woman. The high Court held the City’s contractual requirement violated Catholic Social Services’ First Amendment Religious Freedom rights. Catholic Social Services did and continues to certify individual lesbian and gay persons as foster parents but did not certify unmarried heterosexual couples or same-sex couples regardless of marital status.

Catholic Social Services provides foster care services as part of the Catholic Church’s mission to serve needy children. The services group has contracted for over 50 years with the City of Philadelphia to certify prospective foster care providers and place foster children in certified foster homes, among other services. However, based on the Catholic Church’s established position that marriage is a sacred bond between one man and one woman, the services group will not certify unmarried couples regardless of sexual orientation and will not certify same-sex couples, although the group will certify individual gay and lesbian persons as foster parents and will place LGBTQ+ children in foster homes. Other agencies are available for certification of unmarried and same-sex couples.

No unmarried or same-sex couple had sought certification from Catholic Social Services. However, a newspaper article highlighting the services group’s position prompted the City of Philadelphia to investigate. The matter became a matter of public controversy, and the City promptly informed Catholic Social Services that the City would no longer refer any foster children to the services group under the existing contract and would no longer contract with the group for any foster care services, including fostering needy children, based on the services group’s alleged violation of the City’s non-discrimination ordinance. The City of Philadelphia then conditioned any future contracts with Catholic Social Services on the inclusion of contract language requiring the services group to certify same-sex couples as foster parents. Although not deciding on these grounds, the Supreme Court was very skeptical of the City’s motives, stating: “Government fails to act neutrally when it proceeds in a manner intolerant of religious beliefs or restricts practices because of their religious nature.” This statement may be a caution for public bodies acting reactively and not neutrally in the face of politicized issues.

The U.S. Supreme Court, in a unanimous decision written by Chief Justice Roberts, held that requiring Catholic Social Services to certify same-sex couples as a condition for contracting with the City violated the First Amendment’s Free Exercise Clause, which prohibits government infringement upon the free exercise of religion. Specifically, the Constitutional provision states: “Congress shall make no law . . . prohibiting the free exercise” of religion (the provision applies to states and state subdivisions through the Fourteenth Amendment). The Court quickly dispensed with the City’s argument that there was no burden on the free exercise of religion, stating “it is plain that the City’s actions have burdened CSS’s religious exercise by putting it to the choice or curtailing its mission or approving relationships inconsistent with its beliefs.”

The high Court then determined that Catholic Social Services was unconstitutionally forced to choose between scaling back its services to needy children or violating the Catholic views regarding marriage. Reversing both the district court and Third Circuit Court of Appeals, the Supreme Court determined that the City’s actions were not “generally applicable” towards religion and were unconstitutional because:

a.  The City’s ordinance allowed for exemptions to the non-discrimination ordinance at the sole discretion of the Commissioner, but the Commissioner refused to allow an exemption to Catholic Social Services. The Court held that inclusion of an entirely discretionary exemption system automatically renders the non-discrimination requirement not generally applicable. The Court also determined a requested “religious hardship” exemption could not be refused except with compelling reason, and no such compelling reason was given by the Commissioner. The Court stated, “[w]e have never suggested that the government may discriminate against religion when acting in its managerial role.” The Court also held that Catholic Social Services was not providing a “public accommodation” with its foster home certification services.; and

b.  The mandatory contractual non-discrimination provision demanded by the City imposed a burden on Catholic Social Services’ religious freedom, was not generally applicable, and could only survive if it met “strict scrutiny.” The City’s stated purposes were to maximize the number of foster families, avoid legal liability, and promote equal treatment among foster parents. The Court held that failing to give the services group an exemption would decrease not maximize the number of certified foster families, there was no analysis or evidence that the City faced any legal liability, and although equal treatment regardless of sexual orientation was important, the City’s system for allowing exemptions undermined its argument that “its non-discrimination policies can brook no departures.”

Although this was not an employment-related case, this decision directly impacts public bodies that contract with or work with any religious groups for services, indicating public agencies likely cannot force religious groups to curtail their religious views to satisfy a non-discrimination ordinance or law. The decision follows a string of high Court cases protecting religious freedom in the face of COVID-19 restrictions on religious gatherings, employment discrimination claims against religious schools, and religious families seeking access to public scholarship funds.

Public bodies should review any non-discrimination policies to determine if discretionary exemptions are permitted. If so, the exemption process may render the policies “not generally applicable” and reduce the ability to survive a constitutional challenge. Additionally, if exemptions are allowed, public bodies should seriously consider requested exemptions based on religious freedom, the refusal of which will be subjected to the highest level of court scrutiny.

This decision may also indicate continued or expanded protection of religious freedom for public and private entities and employers. For example, employees seeking accommodations to exercise religion at the workplace, or seeking modified hours or schedules to accommodate religious observation, or requesting modified job duties based on religious beliefs, may be more likely to be protected given the Supreme Court’s trend in religious freedom cases.

Contact Bullard Law if you have any questions about how religious freedom applies at your workplace.