October 2, 2022

The Supreme Court on Thursday inflicted a unanimous defeat on LGBT couples in a high-profile case because Philadelphia may refuse to enter into a contract with a Roman Catholic adoption agency that says their religious beliefs prevent them from working with same-sex foster parents.

Chief Justice John Roberts wrote in a statement for a majority in the court that Philadelphia violated the First Amendment by refusing to enter into a contract with Catholic Social Services after learning that the organization was not up for adoption would certify.

“The Free Exercise Clause of the First Amendment, which is applicable to states under the Fourteenth Amendment, provides that ‘Congress must not make any law … prohibiting the free exercise of religion,'” wrote Roberts.

“First of all, it is clear that the city’s actions have weighed on the religious practice of CSS by giving them the choice of curtailing their mission or allowing relationships that are incompatible with their beliefs,” he added.

According to long-standing precedents of the Supreme Court, religiously neutral and generally applicable laws can be compatible with the constitution, even if they incriminate religion. However, Roberts said the city’s non-discrimination policy is not generally applicable, citing Philadelphia’s ability to allow exceptions to it.

“Regardless of the level of deference we show to the city, the inclusion of a formal system of fully discretionary exceptions” in their standard care contracts “makes the contractual non-discrimination requirement not generally applicable,” wrote Roberts.

Roberts wrote that Philadelphia had not shown it had a compelling interest in denying Catholic social services an exception to its non-discrimination policy.

“Once the interests of the city are properly narrowed down, they are no longer sufficient,” wrote the George W. Bush-appointed employee.

Roberts admitted that the city had an interest in “equal treatment of prospective foster parents and foster children”.

“We do not doubt that this interest is a weighty one, because ‘[o]Our society has recognized that gay individuals and gay couples cannot be treated as social outcasts or as inferior in dignity and worth, ”wrote Roberts, citing the 2018 Masterpiece Cakeshop v Colorado Civil Rights Commission case.

“Based on the facts of this case, however, this interest cannot justify denying the CSS an exception for its religious practice,” he wrote.

Remarkably, Roberts’ opinion was closer than conservative activists had hoped. LGBT rights supporters feared the Supreme Court would use the case to set its 1990 precedent known as Employment Division v. Smith, which protects neutral and generally applicable laws that incriminate religion. This precedent gives states and cities leeway to prohibit discrimination in different contexts.

Roberts’ opinion was shared by Judges Stephen Breyer, Sonia Sotomayor, Elena Kagan, Brett Kavanaugh, and Amy Coney Barrett. Judges Clarence Thomas, Samuel Alito and Neil Gorsuch agreed with the outcome of the case, but disagreed with Roberts’ reasoning.

Alito, along with Thomas and Gorsuch, represented the majority decision not to question the Employment Division’s case. Alito wrote that Roberts’ narrow reasoning will make the court’s action temporary at best.

“That decision might as well be on paper sold in magic shops,” wrote Alito. “The city has persistently put CSS under pressure to give in, and if the city wants to bypass today’s decision, it can simply remove the never-used exemption authorization.”

Alito wrote that the Labor Department court “abruptly pushed aside nearly 40 years of precedent and found that the Free Exercise Clause of the First Amendment tolerates any rule that categorically prohibits or orders certain conduct as long as it does not target religious practice.”

“Even if a rule does not serve an important purpose and has a devastating effect on religious freedom, Smith says the constitution does not offer protection. This strict stance is ripe for re-examination,” added Alito.

Employment Division was drafted by the late Conservative Judge Antonin Scalia.

Barrett, in agreement with Kavanaugh and in part von Breyer, said she found the arguments for overturning Smith persuasive, but added that “there would be a number of problems to be solved if Smith were overridden.”

“We don’t need to grapple with these questions in this case, however, because regardless of whether Smith stays or leaves, the same standard applies,” wrote Barrett.

Barrett said laws that weighed down religious practice must stand a rigorous scrutiny – a legal threshold – before Smith if they give government officials the discretion to make individual exceptions.

“And all nine judges agree that the city cannot stand up to a severe test. So I see no reason in this case to decide whether Smith should be repealed, let alone what should replace him, ”wrote Barrett.

The Court’s decision in the Fulton v. City of Philadelphia case, nos. 19-123, reverses the opinion of the 3rd Court of Appeals, which sided with Philadelphia.

In a statement, Philadelphia city attorney Diana Cortes called the Supreme Court move a “difficult and disappointing setback for the foster youth and foster parents who work so hard to support them.”

“In today’s ruling, the court has usurped the city’s ruling that non-discrimination policies are in the best interests of the children in their care, with worrying consequences for other government programs and services,” she said.

“At the same time, the city is pleased that the Supreme Court has not radically changed existing constitutional law, as requested by plaintiffs, to adopt a standard that would enforce court-ordered religious exemptions from civil duties in any area,” added Cortes.