On February 24, 2020, the Supreme court agreed to hear an appeal brought against the city of Philadelphia by Catholic Social Services (CSS) and several foster parents. The city has a standing policy of not referring foster children to CSS because CSS will not certify same-sex couples as foster parents in violation of Catholic religious beliefs. The lower courts upheld the city’s position. Under the applicable law, adoption services must be contracted through the city and cannot be completed privately, so the city’s policy requires CSS to provide adoption services for same-sex couples if it is to operate.
The three-part question before the Court is as follows:
“Whether free exercise plaintiffs can only succeed by proving a particular type of discrimination claim — namely that the government would allow the same conduct by someone who held different religious views — as two circuits have held, or whether courts must consider other evidence that a law is not neutral and generally applicable, as six circuits have held; (2) whether Employment Division v. Smith should be revisited; and (3) whether the government violates the First Amendment by conditioning a religious agency’s ability to participate in the foster care system on taking actions and making statements that directly contradict the agency’s religious beliefs.”
The first point addresses diversity of opinions in the lower courts and asks the Supreme Court to decide which interpretation is correct. The second point takes direct aim at Employment Division v. Smith, the 1990 “peyote case” in which the Court ruled that the government can enforce laws that incidentally burden religious beliefs or practices so long as they do not single out a religious group and apply equally to everyone. In this case, the non-discrimination provision is neutral but effectively means that CSS cannot provide these services.
The issue of whether religious organizations, businesses, or individual sole proprietorships can be exempted from state-level non-discrimination laws has become a major issue in recent years, and the issue of religious freedom versus non-discrimination rights will likely become a central issue of the upcoming election in the United States where President Donald Trump is supportive of individual free exercise of religion rights in businesses while opponents have argued that it does not extend to potentially discriminatory business policies and practices. While the Religious Freedom Restoration Act (1993) protects the free exercise of religion against actions of the federal government, it does not apply to states which have been addressing the issue on their own.