To fulfill its mandate to care for foster children in its custody, the City of Philadelphia contracts with a number of private agencies, including some religious agencies, to identify, screen, and certify prospective foster parents.  Philadelphia requires the agencies with which it contracts to comply with its nondiscrimination policy, which prohibits agencies from discriminating against prospective foster parents on the basis of certain protected characteristics, including sexual orientation, when performing duties on behalf of the city.

In 2018, the City determined that Catholic Social Services (CSS), which had a contract to perform foster-parent services, was not complying with this nondiscrimination requirement because CSS refused to serve prospective foster parents in same-sex relationships.  The City therefore refused to contract with CSS.  CSS, along with two of its previous foster-parent clients, filed suit, arguing that the City’s refusal to contract with CSS unless CSS complied with the City’s nondiscrimination policy violated CSS’s First Amendment rights.  The U.S. Court of Appeals for the Third Circuit held that the City of Philadelphia was under no constitutional obligation to contract with CSS while allowing it to discriminate against same-sex couples.  The Supreme Court agreed to hear the case, and CAC filed an amici curiae brief on behalf of First Amendment scholars in support of the City.

Our brief made two points.  First, it argued that Founding-era history regarding the free exercise of religion does not support the petitioners’ claim that they are entitled to an exemption from a neutral and generally applicable civil law.  Several Founding-era state constitutions included provisions that protected the free exercise of religion but also made clear that individuals were not permitted to violate the peace and safety of other citizens in the exercise of their religion.  Further, founding-era congressional debates support the view that the Free Exercise Clause was not understood to have conferred a broad religious exemption from compliance with civil laws.

Second, the brief explained why the Court should not revisit its decision in Employment Division v. Smith, which held that where “prohibiting or burdening the free exercise of religion ‘is not the object [of a law] but merely the incidental effect of a generally applicable and otherwise valid provision, the First Amendment has not been offended.’”  As the brief explained, a ruling for petitioners would require this Court to overrule not only Smith, but also many precedents that pre-date Smith.  Pre-Smith precedent made clear that the government has broad authority to conduct its internal affairs without having to conform to every individual’s religious views.  Pre-Smith precedent also made clear that even if laws that impinged on a person’s religious beliefs were subject to strict scrutiny, the government has a compelling interest in eradicating discrimination, and it can achieve that end only by prohibiting discrimination across the board.  In short, application of pre-Smith precedent leads to the conclusion that petitioners have no right to participate in government contracts without complying with the government’s nondiscrimination policy.

In June 2021, the Supreme Court held that the Philadelphia’s refusal to contract with CSS violated the Free Exercise Clause, but it sidestepped addressing Smith by holding that the law prohibiting discrimination against married LGBTQ couples was not a generally applicable law because it allows for some discretion in selecting foster parents. While this narrow decision preserves for now the ability of states and localities to enforce generally applicable antidiscrimination provisions, it also leaves open the question of how the Court will rule when it cannot sidestep the Smith question as it did in this case.