On June 17, 2021, the United States Supreme Court ruled unanimously (9-0) that the refusal of the City of Philadelphia to contract with Catholic Social Services for the provision of foster care services unless CSS agreed to certify same-sex couples as foster parents violates the Free Exercise of Religion Clause of the First Amendment.

Background

The Catholic Church has served the needy children of Philadelphia for over two centuries. In 1798, a priest in the City organized an association to care for orphans whose parents had died in a yellow fever epidemic. During the 19th century, nuns ran asylums for orphaned and destitute youth. Later, the Church established the Children’s Bureau to place children in foster homes. Catholic Social Services (CSS) continues that mission today.

The Philadelphia foster care system depends on cooperation between the City and private foster agencies like CSS. When children cannot remain in their homes, the City’s Department of Human Services assumes custody of them. The Department enters standard annual contracts with private foster agencies to place some of those children with foster families.

The placement process begins with review of prospective foster families. Pennsylvania law gives the authority to certify foster families to state-licensed foster agencies like CSS. Before certifying a family, an agency must conduct a home study during which it considers statutory criteria including the family’s “ability to provide care, nurturing and supervision to children,” “existing family relationships,” and ability “to work in partnership” with a foster agency. The agency must decide whether to “approve, disapprove or provisionally approve the foster family.”

When the Department seeks to place a child with a foster family, it sends its contracted agencies a request, known as a referral. The agencies report whether any of their certified families are available, and the Department places the child with what it regards as the most suitable family. The agency continues to support the family throughout the placement.

The religious views of CSS inform its work in this system. CSS believes that “marriage is a sacred bond between a man and a woman.” Because the agency understands the certification of prospective foster families to be an endorsement of their relationships, it will not certify unmarried couples — regardless of their sexual orientation — or same-sex married couples. 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.

But things changed in 2018. A local newspaper ran a story in which a spokesman for the Archdiocese of Philadelphia stated that CSS would not be able to consider prospective foster parents in same-sex marriages. The City Council called for an investigation, saying that the City had “laws in place to protect its people from discrimination that occurs under the guise of religious freedom.” The Philadelphia Commission on Human Relations launched an inquiry. And the Commissioner of the Department of Human Services held a meeting with the leadership of CSS. She remarked that “things have changed since 100 years ago,” and “it would be great if we followed the teachings of Pope Francis, the voice of the Catholic Church.”

Immediately after the meeting, the Department informed CSS that it would no longer refer children to the agency. The City later explained that the refusal of CSS to certify same-sex couples violated a non-discrimination provision in its contract with the City as well as the non-discrimination requirements of the City’s Fair Practices Ordinance. The City stated that it would not enter a full foster care contract with CSS in the future unless the agency agreed to certify same-sex couples.

CSS and three foster parents (the “plaintiffs”) filed suit against the City. They alleged that the referral freeze violated the Free Exercise of Religion and Free Speech Clauses of the First Amendment. The plaintiffs sought a preliminary injunction directing the Department to continue referring children to CSS without requiring the agency to certify same-sex couples. The District Court denied relief. It concluded that the non-discrimination requirements in the City’s contract and the Fair Practices Ordinance were constitutional under the Supreme Court’s 1990 decision in Employment Division v. Smith, 494 U. S. 872 (1990).

In the Smith case, the Supreme Court interpreted the First Amendment’s Free Exercise of Religion Clause narrowly, concluding that laws incidentally burdening religion that are “neutral and generally applicable” (i.e., religious organizations are not singled out for less favorable treatment, and religious and secular organizations are treated the same) are valid without proof of a compelling interest.

The Court in Smith repudiated its much more robust interpretation of the First Amendment’s Free Exercise of Religion Clause that had prevailed for nearly 40 years. Sherbert v. Verner, 374 U.S. 398 (1963). In Sherbert, the Court concluded that a law that imposes a substantial burden on the exercise of religion must satisfy “strict scrutiny,” meaning that it is narrowly tailored to serve a compelling interest. Since strict scrutiny is a very difficult test to satisfy, its requirement typically led to the invalidation of laws and regulations burdening religious freedom.

The District Court concluded that the non-discrimination provisions in both the City’s contract with foster care providers and the City’s Fair Practices Ordinance were constitutional under Smith because they “categorically prohibited” all foster care agencies from discriminating on the basis of sexual orientation and thus they were neutral and generally applicable. Religious agencies were not treated less favorably than secular agencies; they all were subject to the same non-discrimination provisions. As a result, strict scrutiny was not required. A federal appeals court agreed, and the plaintiffs appealed to the United States Supreme Court.

The Supreme Court’s Decision

On appeal, the plaintiffs claimed that the City’s actions burdened CSS’s religious freedom by forcing the agency to choose between curtailing its mission or approving relationships inconsistent with its beliefs. The City disagreed. In its view, certification reflects only that foster parents satisfy the statutory criteria, not that the agency endorses their relationships. The Supreme Court noted that its task “is to decide whether the burden the City has placed on the religious exercise of CSS is constitutionally permissible.”

The plaintiffs urged the Court to overrule Smith and return to its broader interpretation of the First Amendment’s Free Exercise of Religion Clause announced in Sherbert under which “a law that imposes a substantial burden on the exercise of religion must be narrowly tailored to serve a compelling interest.” Only three Justices would have overruled Smith.

The Court concluded that it did not have to overrule Smith because “this case falls outside Smith” inasmuch as “the City has burdened the religious exercise of CSS through policies that do not meet the requirement of being neutral and generally applicable.” In other words, since the City’s non-discrimination requirement was not neutral and generally applicable, the Court was not required, under Smith, to apply strict scrutiny (i.e., narrowly tailored to serve a compelling interest).

As evidence that the City’s non-discrimination policy was not neutral or generally applicable the Court cited the non-discrimination requirement of the City’s standard foster care contract that permits exceptions to this requirement at the “sole discretion” of the Commissioner of the Department of Human Services. The Court concluded that “this inclusion of a mechanism for entirely discretionary exceptions renders the non-discrimination provision not generally applicable,” thereby triggering strict scrutiny.

The Court also rejected the City’s argument that CSS’s refusal to certify same-sex couples constitutes an “Unlawful Public Accommodations Practice” in violation of the Fair Practices Ordinance. That ordinance forbids “denying or interfering with the public accommodations opportunities of an individual or otherwise discriminating based on his or her race, ethnicity, color, sex, sexual orientation … disability, marital status, familial status,” or several other protected categories.” The City contends that foster care agencies are public accommodations and therefore forbidden from discriminating on the basis of sexual orientation when certifying foster parents.

The Court noted that the ordinance defines a public accommodation in relevant part as “any place, provider or public conveyance, whether licensed or not, which solicits or accepts the patronage or trade of the public or whose goods, services, facilities, privileges, advantages or accommodations are extended, offered, sold, or otherwise made available to the public.” It added the following:

Certification is not “made available to the public” in the usual sense of the words. To make a service “available” means to make it “accessible, obtaina­ble.” Related state law illustrates the same point. A Pennsylvania antidiscrimination statute similarly defines a public accommodation as an accommodation that is “open to, accepts or solicits the patronage of the general public.” It fleshes out that definition with examples like hotels, restaurants, drug stores, swimming pools, barbershops, and public conveyances. The “common theme” is that a public accommodation must “provide a benefit to the general public allowing individual members of the general public to avail themselves of that benefit if they so desire.”

Certification as a foster parent, by contrast, is not readily accessible to the public. It involves a customized and selective assessment that bears little resemblance to staying in a hotel, eating at a restaurant, or riding a bus. The process takes three to six months. Applicants must pass background checks and a medical exam. Foster agencies are required to conduct an intensive home study during which they evaluate, among other things, applicants’ “mental and emotional adjustment,” “community ties with family, friends, and neighbors,” and “existing family relationships, attitudes and expectations regarding the applicant’s own children and parent/child relationships.” Such inquiries would raise eyebrows at the local bus station. And agencies understandably approach this sensitive process from different angles. As the City itself explains to prospective foster parents, “each agency has slightly different requirements, specialties, and training programs.” All of this confirms that the one-size-fits-all public accommodations model is a poor match for the foster care system. …

We agree with CSS’s position, which it has maintained from the beginning of this dispute, that its “foster services do not constitute a ‘public accommodation’ under the City’s Fair Practices Ordinance, and therefore it is not bound by that ordinance.”

The Court concluded:

As Philadelphia acknowledges, CSS has “long been a point of light in the City’s foster-care system.” 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.

The Court remanded the case back to the appeals court for “further proceedings consistent with this opinion.”

Application

The Court’s decision was narrow, and will have little direct impact on churches. But there are two points worth noting:

1. The Court refused to overturn the Smith case. For now, this means that the fundamental First Amendment protection of religious liberty will be interpreted under the Smith case (1990), which represents a significantly more narrow understanding of religious freedom than what existed prior to that ruling under the Sherbert case. While the Religious Freedom Restoration Act (1993) sought to stanch the damage, it has been less effective than a Supreme Court ruling overturning Smith. Justice Alito, in a concurring opinion, observed: “RFRA and RLUIPA have restored part of the protection that Smith withdrew, but they are both limited in scope and can be weakened or repealed by Congress at any time. They are no substitute for a proper interpretation of the Free Exercise Clause.”

2. Interestingly, the Court waded into the topic of public accommodations laws, concluding that a church-based adoption agency is not a place of public accommodation. Most states have enacted such laws that generally prohibit several forms of discrimination by places of public accommodation, including sexual orientation and gender identity. Many church leaders are wondering whether their church is a place of public accommodation subject to such a law. While there is some variation from state to state, a few generalizations can be made:

First, churches are exempt from such laws in some states, either by statute or court rulings. However, conditions often apply.

Second, some churches rent their property to members of the community in order to generate revenue. A common example is rental of the church sanctuary for weddings by nonmembers. It is possible that this practice, as with any other commercial use of church property, would be sufficient to trigger the non-discrimination provisions of a state or local public accommodations law. The City ordinance defined a public accommodation in relevant part as “any place, provider or public conveyance, whether licensed or not, which solicits or accepts the patronage or trade of the public or whose goods, services, facilities, privileges, advantages or accommodations are extended, offered, sold, or otherwise made available to the public.” To some, this language is broad enough to cover commercial exploitation of church property solely for revenue-raising purposes, thereby making such a church a place of public accommodation subject to discrimination laws in the use and rental of its property.

Third, church leaders should seek legal counsel before engaging in any commercial use of church property to assess the potential application of the non-discrimination provisions of an applicable state or local public accommodations law.

Fourth, few courts have addressed the issue of the exposure of religious organizations to public accommodations laws. Here is a summary of the leading cases in chronological order:

The Application of Public Accommodations Laws to Churches