Is Catholic Social Services entitled to a City contract despite its refusal to place foster children with same-sex couples?
Philadelphia Catholic Social Services has argued that the City’s failure to award it a new contract for adoption and foster care services targets CSS for its religious beliefs. The agency refuses to place children in need with same-sex couples. The Third Circuit Court of Appeals has upheld the denial of a preliminary injunction. It embraces the perspective as phrased by the ACLU lawyers for intervenor Philadelphia Family Pride that “the fact that CSS’s non-compliance with the City’s non-discrimination requirements is based on its religious beliefs does not mean that the City’s enforcement of its requirements constitutes anti-religious hostility.”
An outbreak of yellow fever in 1797 spurred the formation of what is now Catholic Social Services of the Roman Catholic Archdiocese of Philadelphia. Rooted in the corporal works of mercy a principal mission of CSS is the care of vulnerable children. But what began as a voluntary mission of mercy has been transformed. Today the care of foster children is a highly regulated public service much of which is carried out by private agencies which contract with cities, towns and states. Catholic Social Services was one of thirty agencies that contracted with the City of Philadelphia for foster care services. Unable to reach an agreement with the City, the CSS contract expired. It has not been renewed.
CSS objects to the terms set by City non-discrimination law. It accepts that it is subject to governmental oversight but an element of the Roman Catholic Catechism leads it to refuse to place children in need with same sex couples. CSS will only certify foster parents who are either married or single; it will not certify cohabiting unmarried couples, and it considers all same-sex couples to be unmarried, according to the opinion of a Third Circuit panel of Judges Ambro, Scirica, and Rendell. The court affirmed the District Judge’s denial of a preliminary injunction in Fulton and Catholic Social Services v. City of Philadelphia.
There is no record of any same sex couple challenging the agency but pursuant to a 2018 City Council resolution demanding contractors comply with the Fair Practices Ordinance the City did not renew the CSS contract. The Archdiocesan agency sought “an order requiring the City to renew their contractual relationship while permitting it to turn away same-sex couples who wish to be foster parents.”
The Circuit Court asked did Philadelphia “have the authority to insist, consistent with the First Amendment and Pennsylvania law, that CSS not discriminate against same-sex couples as a condition of working with it to provide foster care services? Or, inversely, has CSS demonstrated that the City transgressed fundamental guarantees of religious liberty? At this stage and on this record, we conclude that CSS is not entitled to a preliminary injunction.”
The issue attracted a battalion of amici the list of which consumes the first several pages of the opinion. Southern and border states are countered by California, Illinois, New York, New Jersey and every New England state except New Hampshire. Affiliates of many religious organizations and non-profits divide along generally familiar lines. The cultural divide in the country is amply evidenced.
Though CSS will work with homosexuals as foster parents it will only certify foster parents who are either married or single; it will not certify cohabiting unmarried couples, and it considers all same-sex couples to be unmarried.
The Catholic Church, despite a recent softening of papal tone, still holds in its catechism that homosexuality is “inherently disordered”. No one challenges its right to adhere to that doctrine. Nor does anyone assert that the Archdiocese is acting unreasonably in applying its doctrine. What is at issue is whether the City’s nondiscrimination policy is a “neutral, generally applicable law” for which CSS is not entitled to an exception. The Circuit relies on the opinion articulated by Justice Antonin Sclaia in Employment Division v. Smith, 494 U.S. 872, 877-78 (1990). The court there held that a general law forbidding the use of the hallucinogen mescaline could lawfully be applied to bar its use in a Native American spiritual ritual.
In the years since Employment Division v. Smith the nation’s cultural divides have deepened rather than abated in many respects. In this regard the Catholic Church’s traditional view has become a distinctly minority view. But that is irrelevant to the CSS claim that the City should be compelled to issue a new contract similar to the one which has expired. As in other claims under 42 USC 1983 CSS must show a causal link between its religious character and the adverse action taken. The opinion by Judge Adamo explains that “a challenger under the Free Exercise Clause must show that it was treated differently because of its religion. Put another way, it must show that it was treated more harshly than the government would have treated someone who engaged in the same conduct but held different religious views.”
In this regard the City declared its “respect [for CSS’s] sincere religious beliefs, but your freedom to express them is not at issue here where you have chosen voluntarily to partner with us in providing government-funded, secular social services.” Having lost the first round The Becket Fund which brought the litigation will certainly press the litigation. But because the City imposes the same restrictions on all its contractors CSS has failed to prove the hostility to religious expression that is required. Underlying the challenge is the view that the refusal to provide services based on a vision of sin is entitled to accommodation. But the case does not present the narrower question of whether a government agency can allow an accommodation which permits a contractor to offer services on a discriminatory basis. We have firmly decided that question in the negative regarding race, and gender. But with Anthony Kennedy in retirement it cannot be stated with confidence how the enhanced high court conservative majority will respond. Their vision of sin may lead them to the view that Free Exercise requires the City to bend.
- George Conk
May 11,2019
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