Updated June 17, 2021 at 5:04 PM ET
The U.S. Supreme Court on Thursday sided with Catholic Social Services in a battle that pitted religious freedom against anti-discrimination laws in Philadelphia and across the country. The court declared that the private Catholic agency was entitled to renewal of its contract with the city for screening foster parents, even though the agency violated city law by refusing to consider married LGBTQ couples.
At issue was a decision by the city of Philadelphia to end its contract with Catholic Social Services for screening potential foster care parents. CSS challenged the termination in court, citing its religious belief that same-sex marriage is wrong, and maintaining that ending the contract violated its First Amendment right to the free exercise of religion.
The court agreed unanimously that the city violated the Catholic groups' rights. But the justices divided 6-to-3 on the reasoning with the majority limiting the reach of its decision.
"It's certainly a loss," said Richard Dearing, chief of the Appeals Division for the New York City Law Department, who filed a brief for local governments in support of Philadelphia. "It's a narrower one than some might have feared, so I think in that sense it's not exactly a bullet dodge."
But "there will be additional cases," said Alphonso David, president of the Human Rights Campaign. "Our opponents are constantly looking for opportunities to challenge our rights. So this is not the end of the story."
The reason for all this equivocating on Thursday's decision is that the case brought by Catholic Social Services was aimed squarely at overturning a 1990 Supreme Court decision, called Employment Division versus Smith. Smith was authored by the iconic conservative Justice Antonin Scalia, himself a devout Catholic. He wrote that when the government has a "generally applicable" law or regulation and enforces the law neutrally, the government's action is presumptively legitimate, even if it has some "incidental" adverse impact on a religious group or person.
But the court majority, while siding with CSS in the case, specifically refused to overturn Smith, at least for now. Writing for six of the justices, Chief Justice John Roberts said that "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."
Roberts chided Philadelphia for allowing other, non-religious exemptions to its anti-discrimination policy — but not an exemption for CSS — and for allowing a single official to decide to end CSS's contract.
"This is complete discretion on the part of one member of the Philadelphia government," pointed out Marci Hamilton, a law professor at University of Pennsylvania. "That alone got nine justice to agree."
Joining Roberts in the majority were the courts three liberal justices — Stephen Breyer, Sonia Sotomayor and Elena Kagan — as well as conservative Justices Brett Kavanaugh and Amy Coney Barrett.
The remaining conservatives on the court — Samuel Alito, Clarence Thomas and Neil Gorsuch — agreed that CSS should win, but wanted to overrule Scalia's Smith decision.
Alito wrote that he was "disappointed" that the court had failed "to stand up for the First Amendment" and urged the Court to throw the three-decade-old precedent into the trash heap.
"This decision might as well be written on the dissolving paper sold in magic shops," he wrote.
He added: "After receiving more than 2,500 pages of briefing and after more than a half-year of post-argument cogitation, the Court has emitted a wisp of a decision that leaves religious liberty in a confused and vulnerable state. Those who count on this Court to stand up for the First Amendment have every right to be disappointed—as am I."
Gorsuch was also adamant that Smith be scrapped. He pointed out that six sitting justices have questioned the decision's validity, predicting that cases like this one will make their way to the court.
"These cases will keep coming until the Court musters the fortitude to supply an answer," he said. "Respectfully, it should have done so today."
Barrett, a former clerk to Justice Scalia, admitted that the arguments for overturning Smith were "serious" and "compelling," but backed away from calling for Smith's demise.
"There's six votes to overrule Smith," said Doug Laycock, law professor at the University of Virginia, "or at least to think seriously about it."
The dramatic nature of Thursday's decision was underlined by the fact that the case involved government contracting — an area of the law in which the court in the past has said that government is at the apex of its power to impose conditions on how the taxpayers' money is spent.
The city of Philadelphia, which has custody of about 5,000 abused and neglected children, contracts with 30 private agencies to provide foster care in group homes and for certification, placement and care of children in individual private foster care homes.
The city's contracts ban discrimination against LGBTQ couples in the screening of foster parents, but Catholic Social Services, citing religious grounds, has a policy of refusing to consider and certify same-sex couples. When the CSS policy was disclosed in press reports, the city ended its contract with CSS for those services in the future. CSS sued, arguing that the city's position violated its constitutional right to the free exercise of religion.
The Becket Fund, representing CSS, argued that the city was trying to exclude CSS from work that it has done "for two centuries."
But lawyer Neal Katyal, representing the city, countered that "you can't on Monday sign a contract that says we won't discriminate and on Tuesday go ahead and discriminate." And he noted that despite the loss of the screening contract, CSS continued to get millions of dollars from the city for running other kinds of foster care programs, including group homes.
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