In a unanimous decision released earlier today, the U.S. Supreme Court held that the city of Philadelphia violated the First Amendment by refusing to contract with Catholic Social Services (“CSS”) because CSS will not place foster children with same-sex couples. This decision was authored by Justice Roberts and is a strong win for religious liberty. Here are three key takeaways from this decision:
#1 This decision puts kids first.
On any given day, more than 430,000 American children are in the foster care system. Roughly half of foster care placements quit after their first year or first placement, and a child that ages out of the foster care system has less than a 3% chance of earning a college degree. Further, many of the victims of sex trafficking in the United States are runaways from the foster care system or have aged out of the foster care system. In sum, foster care has become a key crisis in many states, and government agencies are scrambling to find effective providers and willing placements.
Given these facts, it makes no sense for government to refuse to contract with an effective foster care ministry simply because of its religious beliefs on marriage. To emphasize this point further, Philadelphia cut CSS from its program just days after putting out an urgent call for 300 more foster parents in March 2018. And that decision came a year after Catholic Social Services placed 226 children in foster homes.
Kids removed from their parents need a prompt placement with a loving and caring foster family, and canceling an effective provider over religious beliefs prioritizes the government’s view of marriage over children’s need for a home. So, this ruling puts kids first.
#2 This decision protects church/state partnerships.
If the church is fulfilling its Biblical role of fulfilling the Great Commission and doing good works that point to Jesus (Mt. 28:16-20; Mt. 5:16) and the state is fulfilling its Biblical role of punishing evil and promoting good (Rom. 13:1-7; 1 Peter 2:13-14), then these two God-ordained institutions should be partners, not opponents. This is, of course, complicated in our plural and increasingly divided nation, but this remains God’s good design for human societies.
This decision adds to a number of recent U.S. Supreme Court cases that prevent government from refusing to work with or provide generally available benefits to faith-based organizations simply because they hold to an orthodox, Biblical view of marriage and sexuality (see also the Trinity Lutheran Church case on participation in a playground resurfacing program and Espinoza on school vouchers). Here’s a key quote from Justice Roberts, “CSS seeks only an accommodation that will allow it to continue serving the children of Philadelphia in a manner consistent with its religious beliefs; it does not seek to impose those beliefs on anyone else…The refusal of Philadelphia to contract with CSS for the provision of foster care services unless it agrees to certify same-sex couples as foster parents cannot survive strict scrutiny and violates the First Amendment.”
A key part of our strategy is building partnerships with government to solve tough problems in our society (such as foster care), and this decision is a critical protection for such efforts.
#3 This decision passed on the Smith question.
Despite the favorable elements of the ruling, the Supreme Court (in a 6-3 decision) passed on a key issue presented to it: whether or not Employment Division v. Smith should be overruled. Or, stated differently, the Supreme Court passed on an opportunity to correct its Free Exercise Clause jurisprudence.
The case Employment Division v. Smith, a 6-3 decision authored by Justice Antonin Scalia in 1990, held that neutral laws of general applicability do not violate the Free Exercise Clause of the First Amendment. This decision lowered the level of judicial scrutiny required in free exercise cases (government will argue that most laws are neutral and generally applicable) and prompted the passage of federal and state Religious Freedom Restoration Acts and continuing efforts to overrule the Smith standard.
This may sound like a lot of legalese, but Smith has profoundly affected First Amendment rights in this country. Need proof? Well, consider the fact that CSS had to take its case all the way to the U.S. Supreme Court just to secure its right to provide foster care services according to its religious beliefs! Smith is inconsistent with a plain reading of the First Amendment: “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof…” And it needs to be changed. For additional reading on Smith and why it should be overruled, consider Justice Alito’s extensive concurring opinion.
Justice Gorsuch summed up this point about Smith by stating:
What possible benefit does the majority see in its studious indecision about Smith when the costs are so many? The particular appeal before us arises at the intersection of public accommodations laws and the First Amendment; it involves same-sex couples and the Catholic Church. Perhaps our colleagues believe today’s circuitous path will at least steer the Court around the controversial subject matter and avoid “picking a side.” But refusing to give CSS the benefit of what we know to be the correct interpretation of the Constitution is picking a side. Smith committed a constitutional error. Only we can fix it. Dodging the question today guarantees it will recur tomorrow. These cases will keep coming until the Court musters the fortitude to supply an answer. Respectfully, it should have done so today.
In sum, I am grateful for this unanimous opinion that puts kids first and protects church/state partnerships on key problems in our society. But similar disputes will keep coming until the Supreme Court addresses Smith.