During the term it completed in July, the Supreme Court decided several important cases involving religious liberty and one that expanded legal protection for gay Americans. In the term that begins next month, the justices will hear a case that purportedly pits those two interests against each other. But the real question in the case is simpler: whether a religious organization that receives government money can violate civil rights laws. The answer is no.
Catholic Social Services of Philadelphia has long participated in the city's efforts to place children in foster homes, receiving a payment from the city for each child who is placed. But the city stopped referrals to the agency because it wouldn't work with same-sex couples as foster parents - a policy the city said violated its Fair Practices Ordinance prohibiting discrimination in public accommodations.
The case raises some of the same issues as a decision two years ago in which the court ruled in favor of a Christian baker who didn't want to provide a wedding cake for a same-sex couple. But while the court ruled narrowly in the wedding cake case - finding for the baker on the grounds that state civil rights commissioners made comments reflecting hostility to his religious beliefs - this case raises the possibility of a more sweeping decision.
Joined by three foster parents, Catholic Social Services went to court seeking to force the city to resume referring children to the agency, only to lose in federal district court and in the U.S. 3rd Circuit Court of Appeals. Writing for the appeals court, Judge Thomas L. Ambro said: "The city's nondiscrimination policy is a neutral, generally applicable law, and the religious views of CSS do not entitle it to an exception from that policy."
The appeals court's ruling was based on a 1990 Supreme Court decision, Employment Division of Oregon v. Smith, which held that the First Amendment's protection of the free exercise of religion didn't allow believers to opt out of generally applicable laws. The ruling led Congress (and several states, including Pennsylvania) to enact statutes prohibiting governments from passing laws that substantially burden religious freedom unless they serve a compelling interest and are narrowly tailored.
In its petition to the Supreme Court, Catholic Social Services asked that the high court reconsider the 1990 ruling, though it also suggested that (as in the wedding cake case) government officials displayed a hostility to religion. The Trump administration has also urged the court to rule in favor of the Catholic agency.
But even if the court were to overrule the Smith decision, Catholic Social Services should lose. The 3rd Circuit explained why: Outlawing discrimination - including against gay and lesbian people - is a compelling government interest. Requiring compliance with civil rights laws is the least restrictive means of pursuing that interest. Indeed, it is the only way to ensure that there isn't illegal discrimination.
As for Catholic Social Services' claim that the city displayed hostility toward religion, the evidence is thin. It includes a claim that the city's human rights commissioner suggested that the agency listen to Pope Francis rather than Philadelphia's archbishop. That is hardly proof of anti-Catholicism.
The agency also claims that while the city required it to adhere strictly to the anti-discrimination ordinance, it allowed for exceptions such as considering a child's race or disability in making some foster-care placements. But, as the appeals court noted, taking such factors into account in an individual case is far different from Catholic Social Services' blanket refusal to work with same-sex couples.
Finally, Catholic Social Services notes that when the Supreme Court ruled in 2015 that same-sex couples had a right to marry, Justice Anthony M. Kennedy said that "religions, and those who adhere to religious doctrines, may continue to advocate with utmost, sincere conviction that, by divine precepts, same-sex marriage should not be condoned."
In that "live-and-let-live" spirit, Catholic Social Services says that it shouldn't be "compelled to affirm same-sex marriages as the price of continuing a religious ministry. Just as no LGBT couples are prevented from marrying because a particular church does not perform same-sex weddings, no LGBT couples are prevented from fostering because a particular church cannot provide an endorsement."
But the government isn't involved in religious marriage ceremonies. By contrast, the city of Philadelphia is intimately implicated in foster-care arrangements made under a city contract. If a religiously affiliated agency seeks to enter into such a contract, it must agree not to discriminate against any group protected by anti-discrimination laws. That is how the court should rule.
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