Feed the World
Welcome back, Impartial Readers.
You might, at this point, be thinking that I’ve run out of controversial topics to cover on the blog. After all, we’ve talked about guns, we’ve talked about elections, we’ve even talked about Obamacare. What else is there, really?
Well, if you were thinking that, alas, you are sorely mistaken; this week, we’re going to talk about religion.
Fulton v. City of Philadelphia:
Let me tee up the issue for you:
It’s 2017, in the City of Philadelphia, and the City has a problem. Well, actually, the City has a whole boatload of problems, but we’re only here to talk about one.
We’ll start with the obvious: the City of Philadelphia, like all U.S. cities, is responsible for providing certain services to its citizens. I’m talking about the essentials, things like roads and public transportation and access to the justice system. You’re familiar with these, of course—they’re fundamental aspects of life in a modern American city, and, unless you’re a hardcore anarchist, you probably recognize how important they are.
The City of Philadelphia, which was, appropriately, the Nation’s de facto capital in 1774, and became the official capital from 1791-1800.
But the City has another important responsibility to its citizens, and it’s one that doesn’t get nearly the attention it deserves: providing a safe, caring environment for the abused, neglected, and abandoned children within the City’s jurisdiction. You’ve probably heard of this one too, even if you don’t actively think much about it. It’s called the foster care system, and it’s the City’s job to make sure it runs smoothly and efficiently.
Here’s the problem:
The foster care system in the City of Philadelphia is overloaded with more than 5,000 children who, because of abuse, neglect, and/or abandonment, were removed from their homes by child welfare agencies. With nowhere else to go, these children became wards of the state, and the City of Philadelphia became responsible for their care and well-being.
Now, if you think 5,000 is a large number, you’re absolutely right, but Philadelphia is by no means the largest foster care system in America. Los Angeles County is, by most measures, the largest, with more than 20,000 children in foster care. Think about that number for a second—20,000. That is a huge number of children growing up with out a home. Incidentally, while we’re on the subject, homelessness and instability among children is a huge problem in modern America (there are more than 400,000 children in foster care nationwide, as of 2017), and it’s one that doesn’t get much attention. You can read more about the problem, and what you can do to help, by clicking here.
In any case, Philadelphia doesn’t have the resources to care for more than 5,000 children on its own.
So what does the City do?
Well, basically, it asks for help. It enters into contracts with private foster care agencies to help arrange the placement of children in foster homes. Essentially, the City employs these private agencies to do things like screen potential foster parents, conduct home visits, and make recommendations about where certain foster children should be placed.
In legal terms, this arrangement is generally referred to as delegation. That is, the City of Philadelphia has taken its lawful authority to care for the children in its care, and passed it along (or delegated it) to certain private agencies. Delegation occurs all the time in America, both at the state and federal level. At one time or another, states and the federal government have allowed private agencies to perform a wide range of government functions, including trash collection, law enforcement, and even maintaining the prison system.
Here’s the thing though: when the government contracts with a private agency to perform a government function, there’s always a catch.
In the City of Philadelphia, during the 2010s, the catch was this: any private agency that wanted to provide state-sponsored foster care had to sign a contract that included a non-discrimination clause. That clause effectively stated that the private agency would not discriminate against any child or prospective foster parent because of their race, religion, ethnicity, gender, or sexual orientation.
Now, provisions like that are pretty common in government contracts. After all, the City doesn’t want to get in trouble if some private group it contracts with starts discriminating against people in the City’s name. It wants to cover its own ass, so it undoubtedly includes non-discrimination provisions in all its major contracts.
And for a number of years, this particular non-discrimination provision wasn’t a problem. Right up until 2018, that is, when it suddenly became a huge problem.
You see, one of those private foster agencies that contracts with the City is called Catholic Social Services (CSS). Now, for many years, CSS had a City contract and was a huge part of the City’s foster care program. But then, in 2018, CSS rejected the City’s contract, arguing that the non-discrimination provision violated its First Amendment freedom of religion.
Specifically, CSS objected to the City’s requirement that it place foster children with same-sex couples.
The Law:
Alright, so let’s talk shop.
As always, remember that I don’t care what you think about religious liberty or same-sex marriage, and neither does the Supreme Court. Those are opinions. You’re entitled to them, but they’re not facts and they’re not law, so they have no place in this discussion.
Now, any discussion of religion begins, as you might expect, with the First Amendment. If you’ve been following the blog on social media (the links are at the top of the page, by the way), you’ve probably guessed where I’m going already, but for everyone else, we’ll start at the beginning.
You know all about the First Amendment. You learned about it in school and you’ve become even more familiar with it over the years as the section of the Constitution that everyone cites in defense of their right to be an asshole in public. Freedom of speech, right? Yes, of course, but don’t even get me started on the percentage of Americans who have no idea what that term actually means. We’ll be here all day.
I digress.
Anyway, the First Amendment also contains other freedoms, including your freedom of religion, freedom of the press, and freedom of association, not to mention the right to peaceably assemble, and the right to petition the government for redress of grievances. There’s a lot packed in there.
We’re here to talk about freedom of religion.
That freedom, as we know it, is contained in the very first lines of the First Amendment (which, as its name suggests, is the first set of rights added to the Constitution after its creation). That should tell you a bit about how important the Founders thought freedom of religion was.
The First Amendment tells us this:
"Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof…."
As you can see, this portion of the First Amendment is divided into two clauses. The first, highlighted in red, is called the Establishment Clause, and the second, in blue, is called the Free Exercise Clause. Together, they make up the more general freedom of religion that we’re all familiar with.
But what do they mean?
Well, you’re probably familiar with what they mean in a general sense: in America, a person is free to practice whatever religion they choose, without interference from the government. (That last bit is important: remember, only the government can violate the First Amendment. Your neighbor Bob can violate your freedom of religion—or speech, or press, or assembly—all he likes, and the Constitution won’t do anything to stop it). We know that, right? After all, that was the whole reason the New England colonists came over on the Mayflower—to escape religious persecution and to establish a society where they were free to practice their religion of choice.
The settlers, who became known as the Pilgrims, practicing their religion of choice. And also plotting to murder the Native Americans and steal their land.
As usual, that’s all true, but it isn’t the whole story.
Actually, it’s really only half the story. Of course, it is true that the Constitution protects a person’s right to practice whatever religion they choose. That’s the business of the Free Exercise clause. But the First Amendment goes one step further. It also prevents the government from effectively establishing a state-sponsored religion, or displaying any religious preference. You see, the Founders weren’t just concerned with practicing the religion of their choosing. They were also concerned with avoiding what had happened to the colonists in England, where the shifting religious allegiances of various monarchs made it difficult to predict which faiths would be safe from persecution on any given day. On Monday, the king (or queen) was a Catholic, and the Protestants were on the run. By Wednesday, the king or queen was dead and their successor was a Protestant, so it was the Catholics who were trouble. And then, come the weekend, the king wasn’t a Catholic or a Protestant, but rather a believer in some new religion he’d started himself when the pope wouldn’t let him get divorced.
Henry VIII, who kicked off the English Reformation when the pope refused to let him annul his marriage to his first wife, Catherine of Aragon
Bottom line: the Founders had had enough of government-controlled religion, and so they included the Establishment Clause in the First Amendment, with the goal of preventing the government from favoring any one belief system over the others. And over the years, the Establishment Clause grew to include other spiritual beliefs, including more secular ideologies like agnosticism and atheism. Nowadays, the Establishment Clause prevents the government from displaying a preference for any religion, and from favoring religious interests over secular ones.
The goal, generally, is to keep religion out of government altogether. You’ve undoubtedly heard this referred to before as the separation of church and state.
Of course, it’s debatable whether this idealistic separation of church and state ever happened, or was even possible. The early settlers in this country, naturally, lived by choice in near-theocracies. And, of course, every U.S. President to date has been affiliated with some branch of Christianity.
So, maybe we never got that one quite right.
But, in any case, that was the goal.
The way to think about the Free Exercise Clause and the Establishment Clause is as the sword and shield of the First Amendment. That is, there’s a defensive and an offensive component to the right we know as the freedom of religion. The Free Exercise Clause is the shield. When the government comes in and tries to tell you that you can’t practice your chosen religion, you raise up your shield and prevent it from interfering in your spiritual life. The Establishment Clause is the sword. When the government starts getting tangled up in religion, you raise that sword and you attack whatever government policy is causing the problem.
In this case, we’re dealing primarily with the Free Exercise Clause, the shield of the First Amendment’s freedom of religion.
Now, when it comes to the Free Exercise Clause, we have to talk generally about two things. The first is a Supreme Court case called Employment Division v. Smith, and the second is a federal law called the Religious Freedom Restoration Act, or RFRA (pronounced “Riff-Ra”).
Let’s start with Smith.
If you follow the blog on social media (top right, hint hint), then you’re familiar with this one already. And if you aren’t familiar with it, you should be. But don’t worry, I’m here to help.
Smith is among the more controversial Supreme Court cases of the last century, and it essentially established the test for violations of the Free Exercise Clause under state law (Smith does not apply to federal law—weird, I know, but we’ll get to that in a minute). It’s really a fascinating case, and I want to give the story the attention it deserves. If you’re just here for the holding, feel free to skip ahead.
The story begins with a man named Alfred Leo Smith:
Smith was a Klamath Native American who was born in in Oregon in 1919, and lived there for most of his life. That life was a troubled one. Smith was taken from his home at a young age and sent to various Catholic boarding schools all along the West Coast, some as far away as Nevada. (This was common in the early 1900s, part of a plan by the federal government to forcibly assimilate Native Americans into American culture by taking over the education of their youth; it’s a black spot on American history that you can read more about here). Smith had problems with alcohol and the law from a very young age. When the United States joined World War II, Smith was drafted, but he never served in Europe or the Pacific Theater. Quite the opposite, in fact: he was sent to federal prison for drinking on duty.
In 1957, Smith got sober with the help of Alcoholics Anonymous and became a drug and alcohol counselor. He developed a reputation within the Native American community and was soon heading several tribal treatment programs across the U.S.
Then, in 1982, one of Smith’s colleagues at his drug treatment center was fired for using peyote in a religious ceremony of the Native American Church (NAC). At that time, possession and use of peyote was illegal at state and federal law, despite the fact that its use was and is core to the spiritual practices of many Native American tribes. Smith was outraged. He attended a similar NAC ceremony, where he participated in the ritual use of peyote and reportedly proclaimed, “You can’t tell me that I can’t go to church.”
Predictably, Smith was fired from his job following the episode. Not only that, but because he had violated the law, he was denied any employment benefits under state law. He sued, arguing that Oregon’s criminal narcotics laws violated his rights under the Free Exercise Clause.
The case eventually made it to the Supreme Court, where the late Justice Antonin Scalia wrote an opinion siding with the State of Oregon. The Court in Smith recognized that it would violate the Free Exercise Clause if a state were to ban a practice that existed solely for religious reasons. So, for example, the State of Oregon could not ban the possession of menorahs or the act of kneeling before the cross. But in outlawing the possession or use of peyote, the State of Oregon was doing something different: it was issuing a general ban on conduct that did not specifically target any religion or religious practice.
Oregon’s controlled substance law was, in the Court’s words a “neutral law of general applicability.” Those are the words to remember from the case. And that’s the upshot of Smith these days:
A state law (remember: Smith only applies to the states) that is both “neutral” and “generally applicable” does not violate the First Amendment, even if it ends up affecting a person’s free exercise of religion.
As for what “neutral” and “generally applicable” mean in this context, we’ll get to that when we talk about the parties and their arguments.
For now, let’s talk about the rest of the story.
The Religious Freedom Restoration Act (RFRA):
Now, I told you that the decision in Smith was a huge one, and, as you might expect, it was hugely controversial.
As I’m sure you’ve noticed, the “neutral, generally applicable” test gives the government a lot of power to pass laws that affect the free exercise of religion in small but meaningful ways.
And from the beginning, liberals and conservatives alike joined in opposition to the decision. (Yes, liberals and conservatives used to be able to work together. I didn’t believe it either, but I did the research: it was an ancient practice, once referred to as “compromise.”). In response to this bipartisan opposition, Congress passed a statute called the Religious Freedom Restoration Act (RFRA) in 1993. That Act essentially overturned Smith, and held that any federal law (remember: RFRA does not apply to the states) which “substantially burden[s]” the free exercise of religion should be subject to something called strict scrutiny.
We’ve talked a bit about strict scrutiny before, so I’m not going to cover it in too much detail here, but let’s just say that it is the toughest test that the Supreme Court has to offer. To “survive” strict scrutiny, a law must:
(1) further a compelling government interest; and
(2) be the least restrictive means of furthering that interest.
That’s generally a tough standard to satisfy, especially the second part.
I mean, think about it. There’s an argument that almost any law you can think of is not the absolute least restrictive means of furthering some government interest. General wisdom states that the application of strict scrutiny is fatal to the majority of laws, though the statistics don’t quite bear that out.
In any case, RFRA imposes a much tougher test than Smith did, and many laws that would survive Smith would end up failing under RFRA.
Take the actual law at issue in Smith: Oregon’s peyote law. RFRA doesn’t apply because it’s a state law, but if it did, there’s a good argument that the law isn’t the least restrictive means of achieving Oregon’s interest in preventing drug abuse. The least restrictive means would probably be a ban that made exceptions for Native American religious practices, which, incidentally, is exactly what ended up happening in the aftermath of Smith.
Ok, phew. We covered a lot of ground there, so let’s hit the highlights.
(1) Smith applies to state laws that impact the free exercise of religion.
(2) Laws that are “neutral” and “generally applicable” will survive under the Smith test, which is a much lower bar than the federal statute, RFRA.
(3) RFRA says that any federal law that “substantially burden[s]” the exercise of religion has to pass strict scrutiny, which is a very difficult test to pass.
Got it?
Good, now let’s look at the arguments.
The Arguments:
CSS:
Ok, before we get into the weeds, let’s do things a little bit out of order.
Normally, I like to sum up each party’s arguments once we’ve discussed them thoroughly, and give you a nice, neat little paragraph you can take back to your friends. This time though, let’s get to the TL;DR section right away. Your time is valuable, and if you don’t want to sit through the whole discussion, you shouldn’t have to. Don’t ever say I never did anything for you.
So here’s the argument in a nutshell:
“When the City sends foster care agencies out into the community to do home visits and inspections, the question it wants answered is whether a foster home would be the best place for any particular child. It’s asking, basically, for an endorsement, not just of the home, but also of the people in it. It wants to know that the people that live there can provide a good, healthy environment for the child. And so, when the City asks CSS to place foster children with same sex couples, what it’s really doing is forcing CSS to endorse those couples and their lifestyles, to state affirmatively that gay marriage is not only acceptable, but also an appropriate environment in which to raise a child. This goes against CSS’ core religious values, and it violates the Free Exercise Clause.”
There you go. If that’s all you came for, feel free to skip ahead to the City’s response. For the rest of you overachievers, let’s talk about how CSS makes the argument.
It all starts with something I’m going to call complicity. This one comes up again and again in modern religious liberty cases. It’s the belief—held by many religions, not just Catholicism—that a person can be morally guilty of some sin simply by endorsing it, even if they never commit the sin themselves. Think of it something like being an accomplice or an accessory to a crime. You may not have actually done the bad deed, but you helped it get done, or, at the very least, you didn’t stop it, and so you might be just as guilty.
Now, this is a fascinating concept to look at in a vacuum (which is how we look at everything here), because you can probably see plenty of situations where it makes perfect sense, and plenty more where it doesn’t. Same-sex marriage is a big one, so let’s use it as an example. I think it’s probably fair to say that a priest who firmly believes that same-sex marriage is a sin would be complicit, in a religious sense, if they were to officiate a wedding between two people of the same sex. And so that same priest would be fully within their rights to refuse to officiate such a wedding (also, remember: the priest isn’t the government, so the First Amendment doesn’t apply to him/her). But where’s the line? Does the same rationale extend, for example, to the church custodian, or the organ player, or a member of the choir? How about a caterer, or a wedding photographer?
While the modern Roman Catholic Church does not consider homosexuality a sin, it does preach that homosexual acts are “intrinsically immoral and contrary to the natural law.”
It’s a complex issue, and it implicates all sorts of different constitutional provisions and anti-discrimination laws. It’s come up again and again in these sorts of cases, in every context from contraceptive care to religiously-inclined bakeries.
Often times, these cases turn on expression. That is, it’s easier to say that someone’s religious rights have been violated if they’re forced to express some view that they find offensive. So the priest in the example above is forced to perform a formal ceremony and legitimize a marriage that goes against everything they believe. That’s a potential First Amendment violation that doesn’t necessarily apply to the caterers and the custodians and the organ player.
And CSS’ position is that they’re the priest in this analogy, that the City is forcing them to either give up their foster care contracts (and we should mention that CSS receives nearly $20 million annually for foster care services), or express a view that is offensive to its religious beliefs.
Ok, so that’s the rhetorical argument, but what about the law?
Well, remember, we’re dealing with a state law here, so were in the land of Smith. And CSS’ position is that the City’s non-discrimination provision isn’t neutral, and isn’t generally applicable.
Let’s look at that and examine what it means to say a law is neutral and generally applicable. Basically, a law is neutral under Smith if it does not specifically target the conduct of any one religion. And a law is generally applicable if it applies equally to religious and non-religious conduct. As I said before, it’s a pretty forgiving standard, and if the case is decided under Smith, CSS probably loses.
Its argument, generally, is that the City only began enforcing its nondiscrimination provision when it heard that CSS was not fostering children with same sex couples. The argument, then, is that while the provision looks neutral, it really only applies to Catholic groups like CSS.
That’s a tough argument to make, and CSS knows it, so there are a couple other components at work here.
The first is the the freedom of speech.
Wait, what? I thought we were talking about the freedom of religion?
We are, but those two are often a lot more closely related than they might seem at first glance.
When we think about the freedom of speech, we generally think about all the things the government can or can’t prevent us from saying (again, I emphasize, the government—private parties cannot infringe upon your freedom of speech). But there’s an equally important, but lesser known component of the freedom of speech, which is the idea that the government also can’t force you to say certain things you don’t want to say. This is often referred to as compelled speech. Probably the most famous example of this is the flag salute, which used to be common in American schools, but is now understood as a form of compelled speech.
The early 20th century flag salute, which was objected to on free speech grounds, but also because it looks a whole lot like the Nazi salute.
Compelled speech is a difficult area of law, though, because there’s a very thin line between speech and conduct. That is, there are hundreds, maybe thousands, of things that the government makes us do (or not do) each day, and almost every one of them has some speech component. To use another common example, think about the license plate on your car. If you’re like me, it’s a typical state-issued license plate. It’s got some numbers, some letters, and a bland color palette. But in many cases, it also comes emblazoned with the state name or motto. And if you want to drive around in your state (or any other) you have to drive around with that name or motto blaring from the front and back of your car. What if you disagree with what that motto stands for? What if you just think it’s stupid, or trite? If the state makes you put the license plate up, is it just another traffic law, or is it compelled speech? To ask the question another way, is the state requiring you to speak when it requires you to use a license plate? Or is it simply requiring you to act—to stick a piece of metal on the back of your car?
A New Hampshire license plate bearing the state motto, “Live Free or Die.”
That’s a tough question, but thankfully, the Supreme Court has already answered it: License plates are a form of compelled speech, and requiring citizens to drive around with a motto they object to on their car violates the First Amendment. Incidentally, this is part of the reason that you see so many different state license plates on the road, with and without state slogans or mottos.
Now, take the same logic and apply it to this case.
CSS’ position is that the City is requiring it to speak by fostering children with same-sex couples, to affirmatively endorse gay marriage. As above, we might ask ourselves whether this is a regulation of speech or conduct. Does a non-discrimination provision require CSS to say something about gay marriage? Or is it simply a regulation on action?
I don’t know the answer to that, but it’s a fascinating question, and it really changes the way you think about the First Amendment.
The last thing we should discuss is CSS’ argument that Smith shouldn’t apply to this case at all, and that strict scrutiny (like under RFRA) should apply in this and all future Free Exercise cases. That’s really what this case is about, at the end of the day. It’s an attempt to see Smith overruled and replaced with a test that is more protective of religious liberties.
There’s really not much we can say about that though, because, at the end of the day, it’s a policy argument. CSS is going to make the case that Smith doesn’t work anymore, and that it should be replaced by a different test. They’re going to point out that it makes no sense to have different standards applying to state and federal law. They’re going to argue that Smith was wrongly decided in the first place, or that there should be exceptions to it. Maybe you think these are compelling arguments, and maybe you don’t, but they aren’t really legal arguments, so we’ll leave them where they are for now.
The only thing I’ll say is that, for better or for worse, it’s very difficult to overturn a Supreme Court case, especially one that has been in place for 30 years. The principle of stare decisis, which we discussed in detail here, in the context of abortion, is a tough thing to overcome. And yet, there are a number of Justices on the current Court who may be sympathetic to CSS’s argument.
That remains to be seen.
Just be aware of it as we move on to the City’s response.
The City:
As before, let’s start with the TL;DR version:
“The City’s non-discrimination provision doesn’t require CSS to express any position on the legitimacy of gay marriage. In fact, it doesn’t require CSS to express any position at all. It doesn’t concern speech, it concerns conduct, and all it does is prevent CSS (or any private agency) from treating people differently because of their race, religion, gender, sexual orientation, etc. It doesn’t just apply to CSS, it applies to everyone equally. No private agency in the City, whether religious or not, is allowed to treat foster children or parents differently because they are, for example, Black, or White, or Jewish, or Catholic, or gay, or straight, or Danish, or Ethiopian. The law is neutral, and it is generally applicable, and it passes the Smith test.”
Now, the first thing we should mention is the various legal differences that come up when we look at the City as a government entity, and when we look at it as an employer. That is, the City gets more leeway from the Constitution when directing its employees and contractors than it would get when interacting with its citizens. It can go a little bit further before the Constitution gets all offended and steps in.
Why is that?
Well, generally speaking, it’s just a practical consideration. The Supreme Court has long recognized that for government to function, it has to have some measure of control over the people it employs and contracts with. It can’t allow those contractors to dictate the terms of every government action, because otherwise, the whole government would grind to a screeching halt, buried by a difference of opinion. In the Court’s own words:
“[i]f every employment decision became a constitutional matter,” government “could not function.”
It’s for this reason that government employees are generally understood to have fewer constitutional rights (or at least, weaker ones) than ordinary citizens. You might be surprised to hear this, but it’s true. Take, for example, the freedom of speech. Let’s assume you and I are out for a walk in the neighborhood one day. We’re walking along, talking about the Supreme Court when we come upon a police officer beating up on an unarmed civilian. (This is a controversial example these days, I know, but we’re all adults here, we can deal with it). Now, we’re both outraged by this; you because you’re a concerned citizen, and me because I’m not a blogger in this fantasy, I’m a police officer myself (off-duty) and this cop is giving me and all my brothers a bad name.
This is the scene….
What do we do?
Well, it’s 2020, so we probably whip out our phones and start filming immediately. We go and try to defuse the situation.
But when it’s over, what happens next?
Well, you being the activist you are (in the fantasy), you probably go home and post the video online, or report the incident to your local news outlet. Maybe your video even gets on TV. And me, I go and report the issue to my superiors.
All of that sounds fine, right? But it isn’t. You see, your act of posting the video and sending it to the local news is speech protected by the First Amendment. The government can’t stop you from doing it. But my report to my superiors isn’t protected. If my bosses conclude that I’m out of line and decide to fire me for my report, there’s absolutely nothing I can do about it. Why? Because the government has more leeway to control me (one of its employees) than you (one of its citizens).
You might think that’s not fair, but that’s the way it is.
And there are a bunch of different rationales (I covered many of them in a journal article I wrote in law school, which you can read here, if you’re interested/a masochist), but basically it comes down to the fact that if government employees don’t like the government’s policies, they can go get a new job. The Constitution protects their freedom of speech, not their freedom to work whatever job they want. Ordinary people can’t just go out and get a new government.
Take this case as an example. Assume for a moment that CSS isn’t a religious foster-care provider. Assume instead that CSS is just an ordinary person like you or me, with their own unique religious beliefs. Now, assume that the City comes in and tells this ordinary person that they can’t use the City’s services (public transportation, for example) unless they say that gay marriage is ok. That looks like a clear violation of the First Amendment, and it probably is, in part because the City has very little leeway when it comes to its interactions with individual citizens.
But of course, this case is different in a few main respects. First and foremost, CSS differs from our hypothetical ordinary citizen in that they aren’t simply trying to use a government service. No, instead, they’re trying to participate in a government program, one that pays them nearly $20 million each year. And if they don’t like the rules, they can go and provide their services elsewhere, or change up the services they provide.
Also, in the above example, there’s no real benefit to the City of punishing the ordinary citizen for their religious views. The City gets nothing out of it. But in this case, the City has a strong interest in setting the rules for the people who provide foster care. It wants to provide a safe environment for foster children, and it wants to make sure that none of its citizens are discriminated against for seeking to participate. And imagine what might happen if the City were not allowed to provide these standards. A private provider might decide not to foster children with male parents or with female parents. Or unmarried parents. Black parents, white parents, tall parents, short parents. The city would lose all control of the program, and the foster system would, no doubt, be plagued by discrimination lawsuits. Remember, the Free Exercise Clause is a shield—it’s all about what the government can’t do to a person, not what that person can force the government to do (or not do). Basically, CSS can choose to provide foster services however it sees fit on its own. But when it wants a government contract, it has to abide by some terms that it may find objectionable.
So that was a very long-winded (as usual) way of explaining that the City in this case has more leeway to burden CSS’ rights than it would when it comes to ordinary citizens.
Now, to figure out whether those rights are actually being burdened, the City points us, of course, to Smith. We’ve already covered that case, and you can probably guess where we’re going here.
The City believes its nondiscrimination policy is a neutral, generally-applicable law, which satisfies Smith. This is because the policy applies to all foster care providers equally, regardless of their religion. There are no exceptions; everyone who participates is required to refrain from discrimination. Pretty simple.
The last thing I’ll mention is CSS’ freedom of speech argument. On that front, we should ask ourselves: does the City’s policy require CSS to express a view contrary to its religious beliefs?
Spoiler Alert: the City’s answer is no. In the City’s view, fostering a child with a same-sex couple doesn’t require CSS to express any position on the legitimacy (or lack thereof) of gay marriage. They’re simply placing a child in need with a set of parents who can care for that child. The question isn’t whether gay marriage is ok generally, it’s whether the parents in question, some of whom happen to be same-sex couples, can provide an appropriate environment for a foster child. In some cases, the answer to that question may be no. In some it may be yes, but in neither case is CSS required to support gay marriage as an institution.
Take a minute to consider this. What do you think? Whatever you believe, try to put yourself in the shoes of the other side, and to understand where they’re coming from.
Now, before we wrap up, let’s hit some talking points so you can wow your friends.
Talking Points:
Freedom of religion under the First Amendment has two components:
The Free Exercise Clause, and the Establishment Clause.
The Free Exercise Clause protects you against any government attempt to interfere with your religious practices.
The Establishment Clause prevents the government from favoring any one religion over the others, or from getting tangled up in religion.
Generally, it tries to preserve a separation of church and state
The Free Exercise Clause is defensive; think of it like your shield against the government
The Establishment Clause is offensive; think of it like your sword.
This case is about whether a City can require religious foster care providers to foster children with same-sex couples.
CSS argues that this is the same as forcing them to endorse same-sex marriage, which would violate their Free Exercise rights.
This comes from a common argument in religious liberty cases, which I’ve called the complicity argument.
Under this theory, a religious person or group is guilty of sin even if they don’t perform it themselves, so long as they help it happen or fail to stop it.
The City says placing children in the best possible environment doesn’t require any kind of endorsement at all, except that the environment is what’s best for the child.
This case also involves compelled speech, which is when the government forces you to express views that you find disagreeable.
Free Exercise cases under state law are typically decided under Employment Division v. Smith.
Under that case, laws that are neutral and generally applicable are going to survive.
If Smith decides this case, CSS probably loses.
CSS wants to see Smith overturned, and the case decided under the more difficult strict scrutiny standard, required by the federal religious liberty law, called RFRA.
If the case is somehow decided under RFRA and strict scrutiny, the outcome becomes much less certain.
Conclusion:
I want to leave you with a few important questions that I think are really central to this case and many others like it. Bear in mind, I don’t have the answers to these questions. No one does, not legally anyway. They aren’t black and white, cut and dried—the answer is going to depend on what you believe. Here they are:
What happens when our freedoms (for example, our freedom of religion) conflict with the individual rights of others(such as, say, the right to be free of discrimination)?
When those things come into conflict, which one yields and which one takes precedent?
Who decides?
How much are we, as individuals, willing to compromise? How much are we willing to sacrifice for the betterment of others?
We’re all going to have our own answers to those questions, and that’s a beautiful thing. Remember, the decision of the Supreme Court in this case is going to be just one of many possible ways to answer these questions. We may agree, or we may not, but no matter what the outcome is, we can still choose what we believe. We can choose to give of ourselves so that other people might have an easier life, a life of dignity. We can choose to compromise. Consider that, and decide for yourself what it is that you believe.
That’s where we’ll leave it for today. As always, do try to keep in mind that there are real people on both sides of this case, real people whose only goal is providing the best environment they can for foster children in the City of Philadelphia. You may disagree with them, and that’s great, but they’re all entitled to their opinion.
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Until next time.