On June 17, 2021, the U.S. Supreme Court ruled unanimously (9–0) that the City of Philadelphia violated the First Amendment’s Free Exercise Clause by refusing to contract with a church-affiliated foster care agency unless it agreed to certify same-sex couples as foster parents.
Catholic Charity’s Long History of Service
- The Catholic Church has served children in Philadelphia for over 200 years.
- In 1798, a priest organized care for orphans of a yellow fever epidemic.
- In the 19th century, nuns operated asylums for orphans and at-risk youth.
- Eventually, the Church launched the Children’s Bureau to place children in foster homes.
- Catholic Social Services (CSS) continues this mission today.
How Foster Placement Works in Philadelphia
- The Philadelphia Department of Human Services (DHS) contracts annually with foster care agencies like CSS.
- When children must be removed from their homes, DHS assumes custody and works with agencies to find placements.
- The process includes:
- Home studies to evaluate prospective foster families
- Certification decisions based on criteria such as:
- Parenting ability
- Family relationships
- Compatibility with the agency’s mission
Once certified, families may be matched with children through referrals from DHS. Agencies then provide ongoing support during placements.
CSS’s Religious Beliefs and Certification Policy
CSS operates based on its belief that marriage is between a man and a woman. As a result:
- CSS does not certify:
- Unmarried couples (regardless of orientation)
- Married same-sex couples
- CSS does certify:
- Single gay or lesbian individuals
- Gay and lesbian children for placement
No same-sex couple had ever requested certification from CSS. If one had, CSS would have referred them to one of over 20 other agencies that do certify same-sex couples.
2018: A News Article Triggers City Response
In 2018, a local newspaper reported that CSS would not certify same-sex couples. In response:
- The City Council launched an investigation.
- The Philadelphia Commission on Human Relations began an inquiry.
- The DHS Commissioner met with CSS and emphasized a shift toward more inclusive practices, referencing Pope Francis’s teachings.
Immediately after the meeting, DHS halted referrals to CSS. The city cited:
- Contractual non-discrimination clauses
- The Fair Practices Ordinance (city law)
Philadelphia insisted it would not work with CSS unless the agency agreed to certify same-sex couples.
CSS Files Lawsuit
CSS and three foster parents sued the city, claiming:
- Violation of the Free Exercise and Free Speech Clauses of the First Amendment
- Request for an injunction allowing referrals to resume without changing certification policies
Lower Court Rulings
- The district court sided with the city, citing the 1990 Supreme Court decision in Employment Division v. Smith.
- The Third Circuit Court of Appeals upheld the ruling.
- The plaintiffs appealed to the U.S. Supreme Court.
Understanding the Smith and Sherbert Cases
- Smith (1990): Laws that are neutral and generally applicable are constitutional—even if they incidentally burden religion.
- Sherbert (1963): A stricter standard—“strict scrutiny”—was previously required, making it harder for government actions to burden religious practice.
CSS urged the Court to overrule Smith and return to the stricter Sherbert standard. However, only three Justices supported doing so.
The Supreme Court’s Ruling
Instead of overruling Smith, the Court ruled in favor of CSS by determining:
- The city’s nondiscrimination policy was not “generally applicable” because:
- It allowed exceptions at the sole discretion of the DHS Commissioner.
- This triggered the strict scrutiny standard.
Under strict scrutiny, the city’s actions could not be justified. The Court concluded:
“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.”
The case was remanded to the appeals court for further proceedings consistent with the decision.
Public Accommodations Argument Rejected
Philadelphia also claimed that CSS violated the city’s Fair Practices Ordinance because foster care agencies are public accommodations. The Court disagreed.
Why Foster Care Isn’t a Public Accommodation
- Certification is not open to the general public like hotels or restaurants.
- It involves:
- Personalized, lengthy evaluations
- Home studies
- Emotional and psychological assessments
- The Court noted that agencies serve specific populations, not the general public.
What the Ruling Means for Churches
While the ruling was narrow, it has implications for churches and faith-based organizations in four key areas:
1. Smith Still Stands—for Now
- The Court did not overturn Smith.
- As a result, religious freedom is still interpreted under a more limited framework—unless future cases change that.
2. Public Accommodation Laws Still Apply—With Limits
- CSS was found not to be a public accommodation.
- However, many states and municipalities have laws that could apply to religious organizations under certain circumstances.
3. Churches That Rent Property Could Be Affected
- If churches rent space (e.g., for weddings), that use could:
- Be considered a commercial activity
- Potentially trigger non-discrimination provisions
4. Legal Guidance Is Essential
- Churches should consult with legal counsel before using property commercially.
- There is limited case law on how public accommodation laws apply to religious organizations.
