Symposium: Fulton, free exercise and three key questions about church-state relations

This article is part of a symposium previewing Fulton v. City of Philadelphia.

Helen M. Alvaré is a professor of law at George Mason University’s Antonin Scalia Law School.

Fulton v. City of Philadelphia is a legally complex case involving everything from free exercise and free speech claims, to nondiscrimination and foster care laws. Even the range of free exercise claims alone is broad. Catholic Social Services and longtime foster parents Sharonell Fulton and Toni Lynn Simms-Busch ask the court to do everything from declaring that Philadelphia demonstrated religious animus toward CSS, to overruling Employment Division v. Smith, the basis of contemporary free exercise law.

Given my background in both family law and the First Amendment, I will focus on those aspects of Fulton bearing upon the future of church-state cooperation regarding human services. The court’s resolution of several questions in the case could affect cooperation concerning any religiously provided social services, education or health care.

The cloud currently hanging over the future of church-state cooperation was predicted by Obergefell v. Hodges, which ruled that the 14th Amendment guarantees the right to same-sex marriage. Many Christians hold that marriage must reflect a Creator’s making men and women sexually complementary and the sole source of new life. They hold that they are powerless to change marriage, and that this understanding of the family uniquely reveals features of God’s love and the ways in which human beings are commanded to love all others. If Fulton is resolved such that these beliefs regularly foreclose the participation of many Christian nonprofits in the public square, communities will look very different in the future; Christians are inspired by the faith to offer countless charitable services.

Such a resolution would be particularly troubling in the foster care field. It would communicate that adults’ interests and demands take priority over children’s needs. This characterizes the “bad old days” of foster care, when some opportunists misused the system to provide adults with children to work as subsidized labor. Foster care reforms flipped this paradigm, orienting the system to find parents for children in need, versus providing children to adults in want. But Philadelphia’s argument that the foster care system is a “public accommodation” – like movies, restaurants and hotels – that must be available to certain adults, is a return to an “adults first” paradigm. Philadelphia even refused to place children with foster families ready and certified by CSS, while publicly declaring a full-blown foster care “emergency,” with 300 children in need of homes.

There are at least three constitutional questions raised in Fulton that bear upon religious agencies’ cooperation with the state to serve the common good. The first — really a series of questions — relates to the Smith test for free exercise violations. How should the court scrutinize the city’s policy? Is it a “neutral and generally applicable” policy that can survive constitutional scrutiny under a mere rational basis test? And what makes a policy neutral and generally applicable? Furthermore, if the policy does not meet this standard, can it satisfy Smith’s strict scrutiny requirement?

Each of these questions is complex and difficult. I can only sketch out responses here, and not even begin to address whether Smith should stand at all. First, even if Smith remains the standard, Philadelphia’s policy is not neutral. The city’s animus against the local Catholic community and CSS in particular is clear, as described below. Additionally, the city acknowledges its plenary authority to waive the policy at its discretion, and that it has made an advance decision never to waive it for CSS. This is the very portrait of a government action that is not generally applicable under Smith and Church of the Lukumi Babalu Aye v. City of Hialeah.

As such, the policy is subject to – and fails – the two elements of strict scrutiny analysis. The city should not be able to claim that it has a “compelling interest” (the first element) in ensuring that no hearer’s dignity is offended by learning of the continued operations of a religious foster care agency adhering to its theology of marriage. As the court stated in Masterpiece Cakeshop v. Colorado Civil Rights Commission: A religion’s objection to solemnizing a same sex marriage “would be well understood in our constitutional order as an exercise of religion, an exercise that gay persons could recognize and accept without serious diminishment to their own dignity and worth.” The same is true regarding the religious exercise of a foster care agency. Furthermore, CSS is willing to help same-sex couples find other agencies. Thus the city’s policy fails the “least restrictive means” element of strict scrutiny; the city can achieve its goals by requiring CSS to help same-sex couples find other agencies just as, today, Philadelphia’s foster-care agencies help foster parents find agencies having more relevant expertise.

A second question concerns whether it is an unconstitutional condition for Philadelphia to require CSS to do and say certain things in order to continue supporting foster families. Philadelphia has control over the fate of foster children. They are in the city’s custody; no agency may provide foster care services without city permission. But Philadelphia partners with agencies to support their ongoing care of individual foster children, not their home studies and certification. Yet the city demands that CSS conduct such studies and write certifications violating their religious beliefs, and simply add a “disclaimer.” They argue that contractors are essentially government agents.

But requiring private contractors to contradict their beliefs in these ways is clearly unconstitutional under West Virginia State Board of Education v. Barnette. And if the city goes unchecked here, this has ominous implications for other arenas in which the state wields significant power while religious participation also abounds. Governments might claim that their regulation or funding of aspects of religious schools, homeless shelters and hospitals renders these institutions agents of the government, required to pledge allegiance to the state’s views on marriage and other disputed matters.

Third and finally, there is the question previously addressed in Masterpiece Cakeshop, about what constitutes impermissible state hostility toward a religion in violation of the free exercise clause. In Masterpiece Cakeshop, a state commission compared the baker’s religious freedom argument for avoiding cooperation with a same-sex wedding to a religious justification for slavery or the Holocaust. Philadelphia’s hostility is similar. City officials accused CSS of “discrimination that occurs under the guise of religious freedom,” without the Holocaust and slavery references. But what other words or behavior might qualify as impermissibly hostile? A history of prior denunciations of the Catholic Church in Philadelphia? The mayor invited Pope Francis to “kick some ass” in the Archdiocese of Philadelphia when Francis visited there. Hostility specifically to the church’s marriage teaching, the underlying controversy in this case? The city ridiculed CSS’s beliefs as retrograde, and claimed that it knew Catholic theology – specifically, the mind of Pope Francis – better than CSS. What about the series of post-hoc rationales Philadelphia successively launched and abandoned, to justify cutting CSS out of foster care? These are too lengthy to rehearse in one essay, but the city claimed, and then abandoned, at least five different rationales before inserting a new nondiscrimination requirement into its post-hoc foster agency contracts. Even on the sixth try, however, the city retained the power to waive this requirement, while simultaneously admitting that it had “no intention” of granting CSS a religious exemption. The Supreme Court’s decisions in Masterpiece Cakeshop and Lukumi confirm that every one of these statements and actions constitutes impermissible state hostility to CSS’ religion.