The new Supreme Court justice, Amy Coney Barrett, who became the 103rd associate justice of the U.S. Supreme Court only on October 27, has gotten right to work. On November 4, she sat with the other justices to hear oral arguments in the case of Fulton v. City of Philadelphia.
At issue is:
Whether free exercise plaintiffs can only succeed by proving a particular type of discrimination claim — namely that the government would allow the same conduct by someone who held different religious views — as two circuits have held, or whether courts must consider other evidence that a law is not neutral and generally applicable, as six circuits have held; (2) whether Employment Division v. Smith should be revisited; and (3) whether the government violates the First Amendment by conditioning a religious agency’s ability to participate in the foster care system on taking actions and making statements that directly contradict the agency’s religious beliefs.
In the last discrimination case that was before the Supreme Court, R.G. & G.R. Harris Funeral Homes Inc. v. Equal Employment Opportunity (together with two other like cases), the Court settled a question that had split federal courts and agencies: whether the prohibition against discrimination in employment because of sex in Title VII of the Civil Rights Act of 1964 includes discrimination on the basis of sexual orientation or “gender identity.” The Court ruled that discrimination in employment because of sex includes sexual orientation and “gender identity.” In a 6-3 decision issued in June of 2020 that covered all three cases, the Court concluded,
In Title VII, Congress adopted broad language making it illegal for an employer to rely on an employee’s sex when deciding to fire that employee. We do not hesitate to recognize today a necessary consequence of that legislative choice: An employer who fires an individual merely for being gay or transgender defies the law.
The current case of Fulton v. City of Philadelphia can be simplified as: May the city of Philadelphia require Catholic Social Services (CSS), a foster-care agency associated with the Archdiocese of Philadelphia, to follow the city’s nondiscrimination ordinance and place foster kids with unmarried couples or same-sex couples? The Court’s decision could affect state and local governments that contract with private companies to provide certain services.
Supreme Court reporter Amy Howe provides some necessary background:
During the 50 years that it has worked with the city to place foster children, CSS has worked with thousands of foster parents, including the named plaintiff in this case: Sharonell Fulton, who has served as a foster mother to 40 children over 25 years. For CSS, the home studies that are part of the process of certifying prospective foster parents are effectively endorsements of the family. The agency’s Catholic beliefs, it explains, preclude it from certifying both foster parents who are not married and same-sex married couples — although it is not clear whether any same-sex couple has ever asked CSS for certification.
In 2018, the city of Philadelphia “passed a resolution that instructed the Department of Human Services, which is tasked with finding a home for foster children, to change its contracting practices.” The resolution condemned “discrimination that occurs under the guise of religious freedom.” After the DHS initiated an investigation into whether religious foster-care agencies had discriminated against same-sex couples, it blocked all referrals to CSS. Fulton, another foster parent, and CSS then filed a federal lawsuit to force the DHS to resume referrals to CSS. They argued that the city’s actions violated the free exercise clause, the establishment clause, and the free speech clause of the First Amendment. A federal district court denied CSS’s request and the U.S. Court of Appeals for the 3rd Circuit affirmed the lower court’s decision. It turns out that “CSS is just one of 30 agencies working with foster children in Philadelphia and nobody could find any examples of same-sex parents in Philadelphia being unable to actually become foster parents.”
A petition for a writ of certiorari was filed by the petitioners with the Supreme Court on July 22, 2019. The petition was granted on February 24, 2020. On June 3, the federal government filed a “friend of the court” brief supporting CSS because the city’s conduct demonstrated “animosity to religion or distrust of its practices” and “hostility toward Catholic Social Services’ religious views.” Justice Samuel Alito, who was clearly sympathetic to the arguments of CSS, said during oral arguments, “If we are honest about what’s really going on here,” the case is “not about ensuring that same-sex couples in Philadelphia have the opportunity to be foster parents.” Rather, Philadelphia “can’t stand the message that Catholic Social Services and the archdiocese are sending by continuing to adhere to the old-fashioned view about marriage.” A decision in the case won’t be forthcoming until next June.
Here is a case where the government says it can discriminate but private organizations cannot. A government entity, in this instance Philadelphia’s DHS, maintains that it has the right to discriminate against CSS because it opposes its religious convictions, but that CSS does not have the right to discriminate against potential clients because of its religious convictions.
It should be the other way around. It is private organizations that should be able to discriminate and government entities that should not be able to do so. Private organizations should have the absolute freedom to discriminate against anyone for any reason and on any basis. Government entities should not have any such freedom. And yet, the same governments (federal, state, and local) that decry discrimination, routinely award contracts to women-owned and minority-owned businesses just because they are women-owned or minority-owned businesses. Just as colleges and universities owned and operated by the states — in the name of “diversity” and “inclusion” — regularly seek to limit the admission of certain ethnic groups and encourage the admission of others.
The Philadelphia DHS is concerned about “discrimination that occurs under the guise of religious freedom.” Here is where religious people — both liberals and conservatives — have gone astray. They have accepted most of the government’s anti-discrimination laws, but then clamor for exceptions “under the guise of religious freedom” so that they are not seen as prejudiced, bigoted, racist, sexist, xenophobic, or anti-homosexual.
But if discrimination is wrong, then it doesn’t suddenly cease to be so because the entity doing the discriminating is a religious organization.
Discrimination means freedom: freedom of thought, freedom of association, freedom of contract. Since discrimination is not aggression, force, coercion, violence, or threat, then, as far as the law is concerned, the government should neither proscribe it nor seek to prevent it.
There is one thing that complicates the Fulton v. City of Philadelphia case: He who pays the piper calls the tune. CSS and other Philadelphia agencies working with foster children are receiving money from Pennsylvania taxpayers. Doesn’t that give the government license to dictate the circumstances under which contracts must be fulfilled?
The solution here is a simple one: privatize foster-care services. Why should the government have the exclusive right to be in charge of foster care? Does the government inherently care more about children than private nonprofit and for-profit organizations? Will the government do a better job of protecting and placing children than private entities? The failings of government foster-care systems have been well documented over the years. Just as we can have education and health care without the state, so we can have foster care without the state.