Religious Foster Care Agencies Still Vulnerable After Fulton | Richard W. Garnett
A The distinguishing feature of Chief Justice John Roberts’ nearly 16-year tenure on the Supreme Court is a growing body of precedent interpreting and applying First Amendment religious clauses and federal religious freedom laws. These decisions allowed for appropriate cooperation between governments and religious schools; curb anti-religious discrimination in regulation and funding; welcomed religious believers whose faith is needlessly weighed down by official action; and respected the place of religion in the history, traditions and public place of the country. It should be noted that under his leadership, and often by his authorship, decisions on these issues have generally not involved narrow divisions along partisan lines.
This trend continued last week in Fulton v. City of philadelphia. Although they disagreed on the legal standard of review, the nine judges – the most “liberal” and the most “conservative” – agreed that the city of Philadelphia had violated the guarantee of the free exercise of law. Constitution by excluding Catholic Social Services (CSS) from participation in the city’s foster care system.
When regulators learned, through a newspaper article, that CSS would not certify unmarried or same-sex couples as foster parents, they began a series of crass efforts to exclude the agency. of this ministry. They did this despite the fact that other foster placement agencies in Philadelphia certify and certify same-sex couples, which no same-sex couple has applied for and has been denied certification. of the CSS, and that, in the words of the Chief Justice, “[t]The Catholic Church has served needy children in Philadelphia for over two centuries. The Court concluded that this exclusion did not conform to a truly “generally applicable” non-discrimination rule and that the imposition of the religious exercise of CSS was not necessary to advance the interests of the city.
Most court observers, after closing arguments, expected CSS to win the case. Interventions by judges in controversies over COVID-related limitations on public religious gatherings had confirmed that at least a majority was inclined to watch closely and with skepticism official actions that target religious activities or selectively regulate them. Yet unanimity in Fulton surprised most and echoed the landmark decision of Hosanna-Tabor v. EEOC almost a decade ago. This is, hopefully, a reminder that religious freedom is fundamental and that it should not and should not be just a partisan concern.
Some commentators, as well as three of the judges, said the court’s decision was “narrow” and that CSS’s victory was fleeting. Judge Alito wrote in his concurring opinion that “the court’s decision might as well be written on the dissolving paper sold in magic stores.” Indeed, the outcome depended on features of the city’s regulatory regime which undermined its “general applicability” and which could presumably be easily changed. The Court did not, as Justices Alito, Gorsuch and Thomas would have done, overturn the controversial 1990 decision in Division of Employment c. Smith, and therefore CSS’s ability to provide hospitality services in a manner consistent with its character and mission is still vulnerable.
If the city were to rewrite its rules to more judiciously exclude CSS, it would harm the interests of vulnerable children, prevent experienced and caring providers from using their skills and services for the common good, and reveal an ideological (“religious” imbalance). ?) zealous. Hopefully not. Be that as it may, several aspects of the opinion of the Chief Justice for the Court, fully joined by five other judges, are worth noting and suggest that Fulton could and should turn out to be more than – again, in Judge Alito’s words – a “wisp.”
First, the nine judges agreed that the city’s refusal to enter into a contract with CSS to provide foster care services infringed its right to free religious exercise. Chief Justice Roberts wrote: “It is clear that the city’s actions have weighed on the religious exercise of CSS by putting it before the choice of restricting its mission or approving relationships inconsistent with its beliefs. It is irrelevant that the government did not claim to prohibit CSS from keeping or professing its marriage and family commitments.
Next, and related, the Court rejected the City’s argument that the contractual, or “managerial” nature of its relationship with CSS should give it more latitude to encroach on the latter’s religious exercise. Contemporary governments have many ways, not limited to mandates and sanctions, of forcing individuals and religious groups to compromise or withdraw; they are often able to do so as well through indirect “soft power” mechanisms such as contractual conditions, accreditation requirements, licensing regimes and access criteria as through direct ordering. the Fulton The case recalls that these means are also governed by the free exercise clause.
It is also significant that the Court stated more clearly than it had done in nearly 30 years that official acts which are in fact not “generally applicable” should not be accorded the judicial deference required in Black-smith. A law or policy that contains exemptions and exceptions – or even a mechanism for granting accommodations on a case-by-case basis – is not, the Court noted, generally enforceable, and therefore needs to be carefully assessed if it imposes a burden. to religious exercise. . This rule, or something similar, has been applied in recent court orders in trials for religious gatherings, but in Fulton he was joined by the more “liberal” judges and now clearly controls in the future.
Finally, the Court’s treatment of the city’s asserted “compelling interest” in combating discrimination will almost certainly be important in a wide variety of future cases. The majority noted that the correct question to ask is not whether this interest is, in general, important, but rather whether it is necessary, in the pursuit of that interest, to refuse an accommodation requested from a individual or institution whose religious exercise is hindered. The court did not accept the claim that such an accommodation would inflict “prejudice to dignitaries” or undermine the objectives of civil rights laws.
These benchmarks and doctrinal developments are welcome. At the same time, it is undeniable that, not always, but sometimes, a “victory” in a case of religious accommodation is also a kind of loss. While most religious exemption requests do not involve a moral challenge to the law in question, some do, and CSS do. That is, CSS needs an exemption in order to do its important and generous work because its understanding of marriage and family has been officially rejected.
Most requests for religious exemptions do not involve burning moral issues or “social issues”. They seem easier to navigate, as political authority is being asked to incur costs or inconvenience, or to sacrifice a little in terms of efficiency and consistency, but not to abandon an orthodoxy. Increasingly, however, as the understanding of the public interest in preventing heinous discrimination has broadened – for example, to require Catholic health facilities to perform abortions – demands for exemption take on a different character and are seen as a threat to progressive commitments. Fulton is not the end of the matter.
Richard W. Garnett is Professor of Law and Concurrent Professor of Political Science at the University of Notre Dame.
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