Updated June 17, 2021 at 11:39 AM ET
The U.S. Supreme Court on Thursday sided with Catholic Social Services in a battle that pitted religious freedom against anti-discrimination laws in Philadelphia and across the country. The court declared that the private Catholic agency was entitled to renewal of its contract with the city for screening foster parents, even though the agency violated city law by refusing to consider married LGBT couples.
The court's decision could portend a revolution in the law, and could lead to the court declaring explicitly that anti-discrimination laws, at least those meant to protect the LGBT community, play second fiddle to religious views under the Constitution.
The decision also marked a triumph for a new brand of conservatism on the court, which is putting the Constitution's guarantee to the free exercise of religion at the highest level of protection, while dramatically decreasing the traditional approach based on separation of church and state.
The conservative majority, however, did not explicitly overturn a decision (Employment Division v. Smith) written more than three decades ago by Justice Antonin Scalia, himself a conservative trailblazer. In that decision, Scalia wrote for the court that when the government has a "generally applicable" law or regulation and enforces it neutrally, the government's action is presumptively legitimate, even if it has some "incidental" adverse impact on some citizens.
Writing for the court majority, Chief Justice John Roberts said: "The refusal of Philadelphia to contract with CSS for the provision of foster care services unless CSS agrees to certify same-sex couples as foster parents violates the Free Exercise Clause of the First Amendment."
"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," Roberts wrote.
In three concurrences, the justices questioned Smith or outright called for its overthrow.
Justice Amy Coney Barrett, a former clerk to Justice Scalia, admitted that the arguments for overturning Smith were "serious" and "compelling," but backed away from calling for Smith's demise.
In sharp contrast, Justice Samuel Alito wrote that he was "disappointed" that the court had failed "to stand up for the First Amendment" and urged the Court to throw the three-decade-old precedent into the trash heap.
Justice Neil Gorsuch was also adamant that Smith be scrapped. He pointed out that six sitting justices have questioned the decision's validity, predicting that cases like this one "will keep coming until the Court musters the fortitude" to overrule Smith.
The dramatic nature of Thursday's decision was underlined by the fact that the case involved government contracting — an area of the law in which the court in the past has said that government is at the apex of its power to impose conditions on how the taxpayers' money is spent.
The city of Philadelphia, which has custody of about 5,000 abused and neglected children, contracts with 30 private agencies to provide foster care in group homes and for certification, placement and care of children in individual private foster care homes.
The city's contracts ban discrimination against LGBT couples in the screening of foster parents, but Catholic Social Services, citing religious grounds, has a policy of refusing to consider and certify same-sex couples. When the CSS policy was disclosed in press reports, the city ended its contract with CSS for those services in the future. CSS sued, arguing that the city's position violated its constitutional right to the free exercise of religion.
The Becket Fund, representing CSS, argued that the city was trying to exclude CSS from work that it has done "for two centuries." But lawyer Neal Katyal, representing the city, countered that "you can't on Monday sign a contract that says we won't discriminate and on Tuesday go ahead and discriminate." And he noted that despite the loss of the screening contract, CSS continued to get millions of dollars from the city for running other kinds of foster care programs, including group homes.
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