WASHINGTON (Whitehead Law Firm LLC) – On Nov. 4, at 10 a.m. (ET), while most Americans were rising after a long night of watching incomplete election returns, Becket Fund attorney Lori Windham was rising before the US Supreme Court – by video conference – to argue the most important Free Exercise case of the term, Fulton, et al. v. City of Philadelphia. As in the delayed election results, Philadephia’s conduct is at the heart of the dispute. Ms. Windham’s clients are Catholic Social Services and two longtime foster parents Sharonell Fulton and Toni Lynn Simms-Busch.
At issue is whether a city government may end a major part of Catholic Social Services’ (CSS) 200-year-old foster-care ministry simply because it operates according to its religious beliefs about marriage. CSS serves all children needing foster care, but CSS cannot perform home studies and provide written endorsements for same-sex couples, due to CSS’s biblical convictions about marriage. The reaction of the city was to stop allowing foster children to be placed with any family endorsed by CSS, including longtime foster parents Sharonell Fulton and Toni Lynn Simms-Busch. This means that even though no same-sex couples had asked to work with the Catholic agency, Ms. Fulton and other foster families that actually chose to work with the church agency cannot welcome new children into their homes at a time when Philadelphia has an admittedly “urgent” need for more foster parents.
The city says CSS is discriminating against same sex couples. CSS and Ms. Fulton say the city is discriminating against their religious views about marriage.
Lawyers frame the technical issue as to whether the law prohibiting same sex “discrimination” must meet the legal standard of “strict scrutiny,” a high bar that this law probably could not clear. The city argues against “strict scrutiny,” saying that a “religiously neutral law of general applicability” need only pass the “rational basis” test, which is much lower, citing Employment Division v. Smith, a controversial opinion written by the late Justice Scalia which held that “neutral laws of general applicability” usually do not violate the free exercise clause.
This argument points to the most interesting prospect of the Fulton case: the court might reconsider, if not reject, the Smith decision. Smith has crippled free exercise claimants for 30 years. In 1990, many religious liberty scholars, left and right, criticized Scalia’s opinion as “gutting” the free exercise clause. The Smith decision led to the passage of the Religious Freedom Restoration Act (RFRA) by Congress and similar laws in many states. RFRA was supported by religious groups, left and right, and became the alternative legal strategy for religious liberty lawyers, because constitutional Free Exercise claims were so weakened by Smith. Several justices have criticized Smith in recent years, enticing the lawyers in Fulton to ask the Court to “gut” Smith and to revitalize the Free Exercise clause.
Since colonial times, churches and denominations have been leaders in founding and operating orphanages and successful programs to place children with individual families — an early form of what we now call foster care. They did so with little or no government regulation or interference for generations. In the latter part of the 1800s, states began to get more involved, but they continued to work through — and rely heavily on — private church-related groups. Today state and local governments assert the right to monopolize the field of foster-care placements for children in state custody. The Fulton case shows how government can abuse that authority when faith-based providers are driven out of this ministry field unless they abandon their religious convictions and embrace the government’s creed.
Attorneys Michael and Jonathan Whitehead in Kansas City have been following the case closely, and observed the oral argument by video conference along with a group of other religious liberty lawyers.
“Denominational ministries like the Missouri Baptist Children’s Home may be significantly impacted by the decision in this case, so we are watching it carefully,” Michael Whitehead commented. The Whiteheads provide legal counsel to the Missouri Baptist Convention and many of its entities. “In fact, all religious persons and organizations should be interested in the outcome of this case and the future of the Smith decision.”
“Several justices expressed concern about the unworkability of the Smith decision, even the newest Justice Amy Coney Barrett,” Whitehead observed. “Justice Breyer asked what rule might be better than Scalia’s rule, and Justice Kavanaugh asked if there was room for a compromise that would serve people in same-sex couples while still allowing faith-based ministries like CSS to participate in foster care under some sort of exemption policy.
“We are cautiously optimistic that the Court will rule for the religious ministry and may revise or overrule the Smith decision, for the good of religious liberty claimants generally,” Whitehead concluded.
Friend of the court briefs were filed by many religious organizations including the Southern Baptist Convention’s (SBC) Ethics & Religious Liberty Commission (ERLC). They stress that the practical impact of the City’s position is that children needing placement are denied access to wonderful homes, just because families who would partner with CSS share its religious views about marriage. The exclusion of CSS for its religious view should be held to violate the Free Exercise Clause, and if Smith is to the contrary, it should be over-ruled.
The oral argument lasted nearly two hours, with active questioning by all the justices. A decision is expected by the end of June 2021.