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Can the Government Kick Religious Groups Out of Social Services?

All across the country, religious institutions are at the fore of providing social services to their communities. Thousands of homeless shelters, adoption agencies, schools, hospitals, and food pantries would not exist if it were not for the faith communities which founded them and keep them going. Their religious beliefs compel them to serve those in need. And millions depend on them.

Unfortunately, many local governments are making it harder for these institutions to serve their communities. In some cases, zoning and land use restrictions are choking them out. In other cases, cities are going after religious institutions because their religious beliefs do not jive with public policy positions. Many of these cases end up in court as religious groups fight for the right to serve in accordance with their religious convictions.

One such case is now before the United States Supreme Court. The case is Fulton v. City of Philadelphia. Ms. Sharonell Fulton is a Catholic with a huge heart for children. Over the years, she has personally partnered with Catholic Social Services (CSS) in Philadelphia to provide foster care for 40 children. Remarkably, the Church itself has provided foster care services in Philadelphia for over 200 years. Tens of thousands of children have found homes as a result of these charitable services. But now, the City is seeking to shut its foster care program down. The reason is that the Church, in accordance with its long-held beliefs, is unwilling to endorse same-sex or unmarried couples for foster placements. Not that any same-sex or unmarried couples have been denied the ability to serve as foster parents in Philadelphia. On the contrary, there are 29 other foster agencies in the City that work with such couples. In fact, because such couples work with those other agencies, no same-sex couple has ever even tried to foster through CSS.

Nevertheless, the City has put CSS to the coercive choice of either endorsing same-sex couples or losing its ability to provide foster care services. No accommodation will be made for its religious beliefs, even though the City has the authority to make an exception for CSS and even if it means hundreds of kids will suffer as a result.

The question before the Supreme Court is:  “Does the government violate 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?” How the Supreme Court answers this question will have tremendous implications far beyond just the foster care system.

For example, during oral argument last week, Justice Amy Coney Barrett highlighted where the City’s argument could lead when she asked the City’s attorney whether the government could expand its authority over healthcare and force Catholic hospitals to provide abortions as a condition on their ability to continue providing healthcare services. The City’s attorney had no real answer.

While many expect that the City will lose this case based on the evidence of the City’s unlawful hostility and intolerance towards CSS’s religious beliefs, it is hard to say whether the Court will go beyond the facts of the case to issue a broader ruling. CSS has asked the Court to revisit its First Amendment jurisprudence and overrule the much-criticized case of Employment Division v. Smith.

Under Smith, a neutral law of general applicability which burdens religious exercise does need not be justified by a compelling governmental interest. While CSS can win its case by showing that the City restriction is not neutral or generally applicable, CSS has argued that Smith did not rightly interpret the First Amendment and substantially weakened the religious liberty protections the Founders had sought to provide.

In the wake of Smith, religious groups and civil rights organizations were so concerned about the negative effects of the Smith decision that they ultimately convinced Congress to enact two federal religious freedom statutes—the  Religious Freedom Restoration Act (RFRA) and the Religious Land Use and Institutionalized Persons Act (RLUIPA). Many of our clients have benefited from these statutes because they provide broader protections than are currently available under the First Amendment (or how it was interpreted in Smith). But RFRA only protects people against the Federal Government and RLUIPA only applies in the land use and institutionalized persons contexts.

So what will the Court do in Fulton? Will it overrule Smith? Will it find some other way to restore heightened protections for religious liberty under the Free Exercise Clause of the First Amendment? Can it find a workable balance between LGBTQ rights and religious freedom? Will the Court rule narrowly for Ms. Fulton on the specific facts of her case? Or will it find that the government can condition a religious institution’s ability to participate in social services on taking actions that directly contradict its religious beliefs?

The stakes for religious liberty and the millions who are served by religious institutions in America could not be higher.

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