The Corner

Law & the Courts

‘The Next Big Religious Freedom Case Just Landed at SCOTUS’

News assistants run outside the Supreme Court to deliver the news of the latest rulings, in Washington, D.C., June 27, 2019. (Carlos Barria/Reuters)

Those are the first words in a tweet thread from Becket attorney Lori Windham, and she’s right. This week Becket filed a cert petition in Sharonell Fulton v. City of Philadelphia. Fulton is appealing from a Third Circuit Court of Appeals opinion holding that Philadelphia did not violate the Free Exercise Clause of the First Amendment when it took punitive actions against Catholic Social Services because, in the words of the cert petition, “as a Catholic agency, CSS cannot provide written endorsements for same-sex couples which contradict its religious teachings on marriage.” Philadelphia took this action in spite of the fact that “CSS’s beliefs about marriage haven’t prevented anyone from fostering. ” As Becket explains:

Philadelphia has a diverse array of foster agencies, and not a single same-sex couple approached CSS about becoming a foster parent between its opening in 1917 and the start of this case in 2018. Despite this history, after learning through a newspaper article that CSS wouldn’t perform home studies for same-sex couples if asked, the City stopped allowing foster children to be placed with any family endorsed by CSS. This means that even though no same-sex couples had asked to work with the Catholic Church, the foster families that actually chose to work with the Church cannot welcome new children into their homes at a time when Philadelphia has an admittedly “urgent” need for more foster parents.

As is the case with multiple modern religious liberty cases, the issue isn’t whether LGBT individuals are excluded from the relevant market, industry, or program but whether the state may use its power to enforce ideological and religious conformity. Just as a ruling for Jack Phillips in Masterpiece Cakeshop meant that customers could still get their cakes, and Christians could still retain their rights of conscience, a ruling for CSS here would mean that LGBT families could still foster, and Catholics would be able to uphold church teaching.

Moreover, the facts of the case demonstrate that Philadelphia’s intolerance doesn’t just harm the Catholic Church, it harms the very people the foster program is designed to help. Consider the example of the heroic petitioners in the case:

CSS helps connect children with parents like petitioner Sharonell Fulton, who has lovingly fostered 40 children in over 25 years; petitioner Toni Simms-Busch, a longtime social worker who decided to foster and adopt two children; and plaintiff Cecelia Paul, who used her training as a pediatric nurse to foster infants born with drug addictions. Philadelphia even named Mrs. Paul a foster parent of the year. After fostering 133 children over 46 years, Mrs. Paul passed away in October 2018, so her rights can no longer be vindicated by this petition. Due to Philadelphia’s policies, Mrs. Paul spent her last months prevented from engaging in the loving ministry to which she had devoted so much of her life.

Again, Philadelphia took this action even though CSS does not prevent LGBT families from fostering or adopting. It’s an additional presence in the foster program, not the only presence in the foster program. It helps provide homes and fill a public need. It is not the sole source of aid.

Earlier today I wrote in the Wall Street Journal that modern attacks on American religious liberty invert the constitutional order. They attempt to render the supreme law of the land subordinate to statutes, regulations, and sometimes even the policy decisions of petty public officials. Often these attacks are made in the name of “inclusion” or “tolerance.” In reality, however, proper respect for religious liberty protects pluralism. It not only fosters diversity, it makes diversity sustainable. By permitting individuals and religious organizations to participate in the educational, cultural, and commercial life of this nation without violating their deepest beliefs, it guarantees rights of full citizenship to every American.

Of course not every religious liberty argument should win the day, and it’s hardly the case that religious liberty should triumph over every civil rights statute, in all circumstances. In Newman v. Piggie Park Enterprises, the Supreme Court rightly rejected a restaurant owner’s claim that he had a religious liberty right to exclude black customers. But it’s simply wrong to equate the government interests in combating the systematic oppression of the Jim Crow South with the City of Philadelphia’s interests in discriminating against a religious program that is directly advancing the public interest by caring for children who face great need.

In their cert petition, Becket’s lawyers ask the Supreme Court to revisit one of its worst recent precedents, Justice Scalia’s great mistake of Employment Division v. Smith, a case that gutted the core constitutional protections of the Free Exercise Clause. The court should grant cert, rule for the petitioners, and reject Smith. If it does so, it will take a giant step towards shoring up America’s constitutional order and preserving the rightful place of our nation’s first liberty — religious liberty — in the constitutional pantheon.

David French is a senior writer for National Review, a senior fellow at the National Review Institute, and a veteran of Operation Iraqi Freedom.

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