When a law of general application (such as the ban on use of the hallucinogen peyote) falls hard on persons who have long used it in their religious rituals, the general law nonetheless survives. That is the principle declared by Antonin Scalia in Employment Division v. Smith (1990).
Last May I warned in a long opinion piece that those principles might not survive if the Kavanaugh and Gorsuch-enhanced conservative majority got their hands on Fulton and Catholic Social Services v. Philadelphia. The City refused to renew an adoption services contract because the Catholic organization, citing the Church's Catechism, refused to place foster children with same-sex couples. The Catechism of the Catholic Church (at 2357) regards homosexual acts as "intrinsically disordered", a violation of natural law, and says that homosexuals are "called to chastity".
That time of reckoning has come. The US Supreme Court today granted cert in response to a petition by the conservative Becket Fund which represents Catholic Social Services. It argues that Employment Division v. Smith should be "replaced". Philadelphia's refusal to contract with CSS "excludes" it from participation in the adoption system. But it is the loss of government funding that is at stake, not the right to offer adoption services as a purely private charity.
As a matter of `forward precedent' the fear is that if a publicly funded adoption agency need not comply with a non-discrimination ordinance who else might avoid such strictures?
- GWC
Justices to take up case involving faith-based adoption agencies and same-sex couples - SCOTUSblog
by Amy Howe
The Supreme Court returned from its winter recess today with just one new grant from last week’s private conference, but the newest addition to the court’s merits docket is a significant one. Next term the justices will hear oral argument in Fulton v. City of Philadelphia, a challenge by several foster parents and Catholic Social Services to the city’s policy of cutting off referrals of foster children to CSS for placement because the agency would not certify same-sex couples as foster parents. After they lost in the lower courts, the challengers went to the Supreme Court, where they asked the justices to weigh in on three questions: what kind of showing plaintiffs must make to succeed on this kind of religious discrimination claim; whether the Supreme Court should reconsider its 1990 decision in Employment Division v. Smith, holding that the government can enforce laws that burden religious beliefs or practices as long as the laws are “neutral” or “generally applicable”; and whether the government violates the First Amendment when it makes participation by a religious social-services agency in the foster-care system contingent on actions and statements by the agency that conflict with the agency’s religious beliefs.
Justices to take up case involving faith-based adoption agencies and same-sex couples - SCOTUSblog
by Amy Howe
The Supreme Court returned from its winter recess today with just one new grant from last week’s private conference, but the newest addition to the court’s merits docket is a significant one. Next term the justices will hear oral argument in Fulton v. City of Philadelphia, a challenge by several foster parents and Catholic Social Services to the city’s policy of cutting off referrals of foster children to CSS for placement because the agency would not certify same-sex couples as foster parents. After they lost in the lower courts, the challengers went to the Supreme Court, where they asked the justices to weigh in on three questions: what kind of showing plaintiffs must make to succeed on this kind of religious discrimination claim; whether the Supreme Court should reconsider its 1990 decision in Employment Division v. Smith, holding that the government can enforce laws that burden religious beliefs or practices as long as the laws are “neutral” or “generally applicable”; and whether the government violates the First Amendment when it makes participation by a religious social-services agency in the foster-care system contingent on actions and statements by the agency that conflict with the agency’s religious beliefs.
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