Is Discrimination Generally Applicable?
February 2023 | Jesse Fager (Communications Director) and Kira Kramer (Staff Writer and Editor)
One of the most popular amendments in the U.S. Constitution is the First Amendment. The high recognition of this amendment comes from the many claims of authority figures and governing bodies violating people's First Amendment rights, some more often than others. One of the provisions within the First Amendment is the Free Exercise Clause. This clause states that the practice and expression of opinion related to religion are protected under the First Amendment. It “protects citizens' right to practice their religion as they please, so long as the practice does not run afoul of "public morals" or a "compelling" governmental interest”— two vague standards. [1] Moreover, not only does this amendment protect the freedom to practice religion and express an opinion, but it also allows the exemption from some generally applicable laws, as long as the violation is for religious reasons.
Violations of the Free Exercise clause are evaluated by analyzing if the laws or conditions being violated are neutral and generally applicable. The landmark case, Employment Division v. Smith (1990) has set the precedent for cases involving generally applicable laws. In this case, “Alfred Smith and Galen Black were fired from their jobs as private drug rehabilitation counselors for ingesting peyote as part of a sacrament of the Native American Church.” [2] When they applied for unemployment benefits, “the Employment Division denied their request because they had violated a state criminal statute.” [3] Alfred Smith filed suit against the Employment Division and won his case in the lower courts. However, the Supreme Court reversed the decision, holding that Smith’s and Black’s free exercise rights were not violated and that the denial of benefits did not violate the First Amendment. Smith held that where “prohibiting or burdening the free exercise of religion is not the object [of a law] but merely the incidental effect of a generally applicable and otherwise valid provision, the First Amendment has not been offended.” [4] A law is generally applicable if there are no exceptions or built-in opportunities for the government to target people on the basis of their religion. Conversely, “a law is not generally applicable if it invites the government to consider the particular reasons for a person’s conduct by creating a mechanism for individualized exemptions.” [5] In 2021, a Supreme Court case utilized the Employment Division v. Smith (1990) case and its definitions of neutral and generally applicable laws to rule on a court case regarding the violation of the Free Exercise clause of the First Amendment.
In Fulton v. City of Philadelphia (2021), Pennsylvania Catholic Social Services (CSS) filed suit against the City of Philadelphia for violation of the Free Exercise and Free Speech Clauses of the First Amendment, particularly those protecting religious liberty. In 2018, attention was drawn to CSS’s refusal to certify unmarried and same-sex couples as it would violate their religious ideology. The City proposed an ultimatum that unless CSS agreed to certify same-sex couples, the City would no longer refer children to that agency or enter into a contract with them in the future. The City made this decision on the grounds that CSS’s refusal to certify same-sex couples violated a non-discrimination provision in the agency’s contract as well as the City’s non-discrimination requirements stated in their Fair Practices Ordinance. As a result of the referral freeze issued by the City, CSS sought to enjoin the referral freeze on the basis that it violated their First Amendment rights.
After the referral freeze issued by the City of Philadelphia, Catholic Social Services decided to sue the city for violating its First Amendment right under the Free Exercise Clause. After CSS lost in two lower courts, the Supreme Court sided with CSS in a unanimous decision. The justification for this decision was because of the influence of “generally applicable.” In this case, the City’s action of providing an ultimatum—allowing same-sex couples or else the contract will be discontinued—burdened CSS’s religious exercise. If CSS wanted to continue operating with the City, they would have to violate their religious beliefs. This type of burdening on religion is not considered neutral and generally applicable, which means that it was subject to strict scrutiny. Strict scrutiny is used in two different kinds of cases: fundamental rights cases and suspect classification cases. The former deals with constitutional issues and the latter deals with discrimination against marginalized groups. Fulton is a fundamental rights case because the constitutionality of religious exercise is in question. Strict scrutiny is the highest level of judicial review, in which a law is presumed to be unconstitutional and the burden of proof falls on the government to prove that the law is constitutional. In order to prove this, the end goal of the law presented must be compelling, and the law itself must be narrowly tailored toward achieving that compelling goal. [6]
In Fulton v. City of Philadelphia (2021), the federal government was accused of violating the First Amendment because the discrimination policies maintained within the contract between their organization and CSS were decided as not generally applicable. In order to understand the court’s ruling on the case, it is imperative that neutral and general applicable laws be defined; in this case, “neutrality and general applicability are requirements for the validity of laws under the Free Exercise Clause because there is no legitimate state interest that justifies violating them.” [7] There is no law that legitimately holds the object of restricting religion. Laws are designed to address specific incidents where harm is caused by religion, but these incidents are not likely to be unique to religion; therefore, “a classification limited to religion carries on its face the indicia of illegitimate purpose.” [8] Essentially, cases that pursue the persecution of religion itself are illegitimate, but where specific harm is caused by religion the law can intervene.
Another important aspect is that the parties involved in this case were a government organization and a religious foster care agency. Free Exercise Clause cases almost always involve government employers. The First Amendment protects private-sector employers from government interference. In Philadelphia, there exist multiple public and private agencies that recruit and train foster parents, along with facilitating placements. There are a few differences between state-run facilities and private agencies. Every state has its own child welfare office, and those state agencies have the authority to license foster/adoptive parents and issue them certificates. Custody of all children within the foster care system falls to the state because private agencies are considered to be private businesses. Private agencies, however, must be approved and on record with the Secretary of State to ensure that they are conducting foster care and adoption services.When an agency requests approval, “the state then reviews the private agency’s request and determines whether it will approve the private agency for foster care only or for both foster care and adoption.” [9] Families can choose to work with either public or private entities when deciding to foster.
Child welfare policies and procedures are run by the state; therefore, not all states allow the operation of private organizations. Some only allow state agencies to facilitate training and placement while others create contractual agreements between private foster care and adoption agencies. The City of Philadelphia contracts with multiple private agencies to recruit and train foster parents, including CSS. Philadelphia can create annual contracts with stipulations and exemptions that the private agency they are looking to contract with must agree to. However, it is difficult to craft contracts with extreme exemptions when balancing multiple interests.
Interestingly enough, in Fulton v. Philadelphia (2021), there was one majority opinion and two concurring opinions. The majority opinion—written by Chief Justice Roberts and joined by Justices Breyer, Sotomayor, Kagan, Kavanaugh, and Barrett—argued that the City of Philadelphia violated Catholic Social Services’ First Amendment right because it gave CSS an ultimatum: either be cut off from the City’s partnership or curtail its mission to allow same-sex marriage couples to foster children. Chief Justice Roberts also stated that this case falls outside of the standards set in Employment Division v. Smith, (1990) because the laws that the city is burdening CSS with are not “generally applicable.” While Chief Justice Roberts stated that there was no reason to challenge Smith, Justice Barrett wrote a concurring opinion stating that the arguments against Smith are compelling. She argued that strict scrutiny is not satisfied in this case as there is no compelling end goal for Philadelphia to freeze its contract with Catholic Social Services. [10] Barrett ended up joining the majority regarding the overturning of Smith, stating that “there would be a number of issues to work through if Smith were overruled.” [11] Justices Kavanaugh and Breyer joined in Barrett's concurring opinion. Justice Alito gave another concurring opinion, in which Justices Thomas and Gorsuch joined. Justice Alito concurred, stating that he would overrule Smith and reverse the decision because Philadelphia violated the Free Exercise Clause; therefore, CSS is entitled to an injunction barring Philadelphia from taking such action. [12]
The role of the courts is to examine laws affecting religious exercise to determine if they are generally applicable and whether the object of the law is neutral. Understanding neutral and generally applicable laws is integral to interpreting the Court’s ruling on this case, previous cases, and those to come. While the LGBTQ+ community is still struggling to have the same rights and privileges afforded to heterosexual couples, the Court’s ruling did not examine this issue in terms of whether or not LGBTQ+ persons ought to foster. Their ruling came as a result of analyzing the contractual relationship between the City and CSS. The City was required to reinstate its contract with CSS and exempt CSS from Philadelphia’s nondiscrimination ordinance. This decision actually maintains LGBTQ+ rights, as it did not rule on the issue of whether or not same-sex couples ought to be able to foster through a Catholic agency. The Court managed to “sidestep addressing Smith by holding that the law prohibiting discrimination against married LGBTQ couples was not a generally applicable law because it allows for some discretion in selecting foster parents.” [13] Ultimately, this Supreme Court case still leaves the question of how the Court will deal with cases that do fall into Smith up to interpretation.
Sources
“First Amendment and Religion.” United States Courts. Administrative Office of the U.S. Courts. Accessed February 25, 2023.
Hermann, John R. Employment Division, Department of Human Resources of Oregon v. Smith. The First Amendment Encyclopedia, 2009.
Ibid.
“Fulton v. City of Philadelphia.” Constitutional Accountability Center, June 25, 2021.
Supreme Court of the United States. “Fulton et al. v. City of Philadelphia, Pennsylvania, et al.” 593 U.S. __ (2021).
“Strict Scrutiny.” Legal Information Institute. Cornell Law School. Accessed February 25, 2023.
Bogen, David S. “Generally Applicable Laws and the First Amendment.” DigitalCommons@UM Carey Law. University of Maryland Francis King Carey School of Law, 1997.
Ibid.
Hetro, Natalie. “Understanding the Differences between State and Private Foster Care Agencies.” Focus on the Family, May 9, 2022.
Supreme Court of the United States. “Fulton et al. v. City of Philadelphia, Pennsylvania, et al.” 593 U.S. __ (2021).
Ibid.
Ibid.
“Fulton v. City of Philadelphia.” Constitutional Accountability Center, June 25, 2021.