A ruling in favor of the Catholic agency has the potential to limit the ability of progressive politicians — including those in the Biden administration — to persecute groups that hold the “wrong” opinions. Here is a quick recap of Fulton v. City of Philadelphia.
In 2018, city officials in Philadelphia insisted that the Archdiocese’s foster care agency certify same-sex married couples. The agency refused. That’s no surprise: The Catholic agency has a long-standing policy of recognizing only traditional marriage between a man and a woman. The city’s reaction, sadly but not surprisingly, was nothing short of apoplectic.
The City Council passed a resolution directing its health department to change its contracting practices and condemning “discrimination that occurs under the guise of religious freedom.” The mayor — a Catholic — initiated investigations of the agency. The commissioner of the city’s health department — also Catholic — told agency officials that “times have changed,” “attitudes have changed,” and that the agency should change its policy because it is “not 100 years ago.”
Unwilling to operate inconsistent with church teaching, the Catholic agency proposed a solution: If the agency were ever approached by a same-sex married couple interested in fostering — something that’s never happened — it will would refer the couple to another agency. The city wouldn’t budge. It stopped referring children to the agency and refused to renew its contract.
Long-time foster mothers Sharonell Fulton and Toni Simms-Busch joined with their agency and went to court. They are now asking the Supreme Court to order the city to reinstate the agency’s placement contract. (I filed an amicus brief in support of them on behalf of former foster and adopted children and parents.)
The Court should honor this request. America has been in a foster care crisis for years. Philadelphia was not immune. This month is National Foster Care Awareness Month — a reminder that safe and loving homes are still needed. Cutting ties with a trusted placement agency like the Archdiocese’s is simply a terrible thing to do.
Any combination of factors supports a decision in favor of the agency.
For starters, there is ample evidence that the city was hostile to the agency for its adherence to Catholic teaching and that the First Amendment prohibits such nastiness. This was how the Court dealt with the Colorado Civil Rights Commission’s attempt to force Jack Phillips — owner of Masterpiece Cakeshop — to design a wedding cake for a same-sex couple. Such a ruling would be a well-deserved rebuke. But if the ruling is too narrow, it could also have the unintended effect of signaling to progressives that they need only be polite when persecuting dissenters.
City officials also flatly refused to exempt the Catholic agency when expanding its anti-discrimination policies. The Court can make clear that embedded in the First Amendment’s free exercise clause is an obligation on the government to accommodate religious belief. Doing so may involve the Court revisiting its rather confusing 1990 ruling, Employment Division v. Smith.
In Smith, two Native Americans were denied unemployment benefits after they were fired at a drug rehabilitation center. A drug test at work revealed the two had ingested peyote, an illegal hallucinogenic drug. It didn’t matter that they took it as part of a religious ceremony. In an opinion written — believe it or not — by the late Antonin Scalia, the Court held that the Constitution does not require accommodations for religious objectors from neutral, generally applicable laws.
There are some compelling reasons why the Court should revisit Smith. For starters, the decision was a major change in the Court’s precedent, so much so that Justice Sandra Day O’Connor observed that it “dramatically departs from well-settled First Amendment jurisprudence, appears unnecessary to resolve the question presented, and is incompatible with our Nation’s fundamental commitment to individual religious liberty.” Another reason is that Scalia could not have imagined how today’s progressives use seemingly “neutral” policies to stifle dissent.
Vindicating free exercise rights in Philadelphia’s foster care program can also help stop the sort of ideological overreach found in proposed laws like the Equality Act – a radical expansion of our nation’s civil rights laws to include sexual orientation and gender identity that bars any statutory protection for religious objectors.
As we speak, there is a good chance that drafts of the decision in Fulton are being circulated among the justices. Any combination of factors could save the centuries-old Catholic foster care program. One thing is certain. The justices must be allowed to do their job and stay laser focused on the freedoms specifically granted to Americans by the framers of the Constitution.
• Andrea Picciotti-Bayer is the director of the Conscience Project, a project advancing conscience rights through public education and amicus support in religious freedom cases.
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