Renee Carlson is General Counsel for True North Legal, a legal initiative of Minnesota Family Institute
Should a faith-based social services agency be excluded from participating in a city’s foster care program, simply for operating in accordance with its sincerely held religious beliefs? The answer is no - unless the agency is located in the city of Philadelphia.
On November 4th the Supreme Court of the United States heard oral arguments in a significant matter concerning the free exercise of religion in the First Amendment. Catholic Social Services (CSS), along with two women who have participated in their foster care program, challenged the city of Philadelphia’s discriminatory actions – specifically the city’s refusal to place foster kids with the agency unless it changed its policies regarding same-sex marriage. Consistent with Catholic teaching, CSS cannot endorse same-sex couples as foster parents in partnership with their agency, as it would be in conflict with the sincerely held religious beliefs of the Catholic Church. As a result of CSS’s deeply held religious beliefs about marriage, it was barred from its placement arrangements with the city of Philadelphia.
Never mind the fact that the City received no complaints about CSS, or that CSS has been serving some of Philadelphia’s most vulnerable and at-risk children for over a century (well before the city of Philadelphia even engaged in the foster system) and within that time frame not a single same-sex couple has approached CSS about becoming a foster parent. Rather, the City refused to work with CSS after reading in a newspaper that CSS could not endorse same-sex couples as foster parents through their agency.
While Fulton is about a social service agency and foster parents seeking reprieve from Philadelphia’s attack on their faith, there’s more. CSS also asked the Supreme Court to revisit the Court’s long-standing approach to analyzing religious freedom claims, specifically asking the Court to revisit its analysis in a case called Employment Division v. Smith. Previous to Smith, the Court evaluated laws infringing upon religious freedoms with the utmost scrutiny (“strict scrutiny”). However, Smith, as decided in 1990, changed the course of how courts approach free exercise claims, looking instead to the neutrality and general applicability of a law. Thus some laws that severely limit certain religious beliefs and practices have been upheld.
This approach has proven detrimental to people of long-standing religious convictions as the government’s religious hostility is often hidden (though not always) under the guise of neutral laws that apply generally to everyone. Though free exercise jurisprudence has left much to be desired since its beginnings, Smith has been criticized by both conservative and progressive jurists. Hence the bipartisan passage of the Religious Freedom Restoration Act (RFRA) and the passage of similar laws in various states in the years following, though these laws have not fully mitigated Smith’s effect on religious freedom. The Court now has an opportunity to rein in Smith and provide much-needed clarity about targeted attacks against religious beliefs and people of faith. Comments made by the Justices during oral arguments in Fulton leave one wondering whether a majority of the Court is actually ready and willing to do so.
How did religious freedom become just one right among many in our country, a diluted version of the Framers’ intent in the First Amendment? Wars were waged and battles fought for what is deemed a hallmark of the freedoms of this nation. It seems unimaginable that James Madison and other founders of our country intended a society where religious hostility is perpetuated—and in Fulton, to the detriment of at-risk children and families. Yet, this is our present-day reality. The facts in this case demonstrate Philadelphia’s hostility toward CSS because of its sincerely held religious beliefs surrounding marriage and its operation in accordance with those beliefs. That Fulton was even on the docket should be of grave concern to everyone, whether or not you identify as a person of faith. As Justice Alito so pointedly stated to counsel representing the city in this case, “If we’re honest about what’s really going on here, it’s not about ensuring that same-sex couples in Philadelphia have the opportunity to be foster parents. It’s the fact that the City can’t stand the message that Catholic Social Services and the Archdiocese are sending by continuing to adhere to the old-fashioned view about marriage.”
While we as a society may disagree whole heartedly on many issues, particularly matters relating to faith and marriage, our freedom to do so in this country is hanging in the balance. This is even more true in Minnesota under the current administration, despite the fact that Minnesota’s State Constitution affords stronger protections for people of conscience than the United States Constitution. Fulton serves as an example to us. In Minnesota, let it never be so. Rather, let us work together to uphold and protect religious freedom, granted to each of us as citizens of the great state of Minnesota. Instead of penalizing people of deep faith who hold to a “traditional view of marriage,” and working to eradicate their views and services from the public square with an “absolutist and extreme position [that]…requires [the Court] to go back on the promise of respect to religious believers”, as Justice Kavanaugh stated during oral arguments, we should, as he suggests, acknowledge that matters of faith and marriage are “sensitive” issues, seeking to find “win-win answers” for everyone. That answer is clear--everyone wins when freedom flourishes. Religious freedom is a victory for everyone.
The Court is expected to issue an opinion on the Fulton case in June. As we wait, let us pray for the Supreme Court Justices who have been set in authority by the Almighty God who holds all authority, for such a time as this.
