Can a Roman Catholic agency involved in placing foster children with carers, decline to place children with same-sex couples because of its religious commitment to the value of traditional marriage? The US Supreme Court recently handed down a significant religious freedom decision in Fulton v City of Philadelphia, Pennsylvania (593 US ____ (2021); No 19-123; 17 June 2021) which ruled 9-0 in favour of the Catholic agency. This is an important decision, although it did not quite go far enough in clarifying the interpretation of the US First Amendment. As decisions in the US often resonate in other parts of the world, I thought it would be helpful to set out the reasons of the court, and to briefly discuss another case which has already been decided based on its reasoning. (That case involves some Amish people and their plumbing arrangements!)

1. Fulton: The Catholic foster care agency

Catholic Social Services (CSS) is an arm of the Roman Catholic church in Philadelphia which has been providing help to troubled families for many years. The headnote to the case provides a helpful summary:

 CSS holds the religious belief that marriage is a sacred bond between a man and a woman. Because CSS believes that certification of prospective foster families is an endorsement of their relationships, it will not certify unmarried couples—regardless of their sexual orientation—or same-sex married couples. But other private foster agencies in Philadelphia will certify same-sex couples, and no same-sex couple has sought certification from CSS. Against this backdrop, a 2018 newspaper story recounted the Archdiocese of Philadelphia’s position that CSS could not consider prospective foster parents in same-sex marriages 

Following this news article the City of Philadelphia told CSS that unless they agreed to consider same-sex couples as possible foster parents, the City would no longer authorise the agency to be involved in providing foster care. CSS responded that they could not deny their fundamental religious commitments, and hence their contract with the City was terminated and not renewed. CSS and three individuals who they had authorised as foster parents sued the City for breaching the First Amendment’s “free exercise” clause.

The relevant part of the First Amendment to the US Constitution provides that:

“Congress shall make no law . . . prohibiting the free exercise” of religion.

This clause has also been held to apply to the US States. It gives an individual right of free exercise of religion, which may be relied on by an individual whose free exercise is impaired by government action. (In this and other respects its operation is broader than s 116 of the Australian Constitution, which does not bind the States here, and has been given a very narrow reading by our High Court. See here for a paper surveying religious freedom protections in Australia.)

While the US “free exercise” clause has been interpreted to give individual rights, the proper way to apply the clause has been the cause of ongoing debate in the US Supreme Court. I provided some background to this in a previous post, but it seems like a good idea to repeat some of that analysis and note the issues raised here in the Fulton case.

To give a brief overview: the Supreme Court some years ago laid down, in Sherbert v. Verner, 374 U. S. 398 (1963), a general framework for approaching “free exercise” claims. Where an action of the government imposed a “substantial burden” on the exercise of religion, it must be “narrowly tailored to serve a compelling interest”. In other words, there are limits on free exercise, but where there is a government impairment of that right, the government must show why it was important to do so, and also show that there was no other reasonable way of doing so other than by imposing the burden. In that case a Seventh Day Adventist lady had been denied unemployment benefits because she could not work on a Saturday, and the court said that this burden had not been shown to be justified.

In 1990, however, a radical change in the test was introduced by the majority in the case of Employment Div., Dept. of Human Resources of Ore. v. Smith, 494 U. S. 872 (1990). There “Alfred Smith and Galen Black were denied unemployment benefits because of a religious practice (ingesting peyote as part of a worship service of the Native American Church)” (summary from Alito J’s concurrence in Fulton, at 15). Rather than applying the Sherbert test, the majority of the court (agreeing with a lead judgment written by Scalia J) proffered a new test for free exercise cases. This new approach was summarised as follows by Alito J:

[W]ithout briefing or argument on whether Sherbert should be cast aside, the Court adopted what it seems to have thought was a clear-cut test that would be easy to apply: A “generally applicable and otherwise valid” rule does not violate the Free Exercise Clause “if prohibiting the exercise of religion . . . is not [its] object . . . but merely the incidental effect of ” its operation. 494 U. S., at 878. Other than cases involving rules that target religious conduct, the Sherbert test was held to apply to only two narrow categories of cases: (1) those involving the award of unemployment benefits or other schemes allowing individualized exemptions and (2) so-called “hybrid rights” cases.

Concurrence of Alito J in Fulton, at 15.

Hence in Smith the plaintiffs lost because the State could show a compelling interest in limiting drug use. As Alito J shows in a compelling and detailed analysis, the result of the Smith approach was to seriously limit claims that could be made for breach of the free exercise clause, and in effect such a claim would need to demonstrate some form of “discrimination” between religion and some other activity.

In response to Smith, the US Congress almost unanimously enacted a law called the Religious Freedom Restoration Act (“RFRA”), which was designed to restore the Sherbert test to questions of free exercise. When the Supreme Court later held in City of Boerne, 521 U. S. 507, that Congress lacked the power under the 14th Amendment to impose these rules on the States, Congress responded by enacting the Religious Land Use and Institutionalized Persons Act (“RLUIPA”) under its spending power and its power to regulate interstate commerce. (See Alito J, at 19). The result is that exercises of Federal power are governed by RFRA, and State laws are governed in more limited areas (land use and conditions of prisoners) by RLUIPA.

But there was no relevant legislation protecting religious freedom governing the City of Philadelphia’s decision, so the question was whether the constitutional free exercise clause could do so. A majority of the court (the main decision being given by Roberts CJ) held that it did. The City claimed that its rule barring foster care agencies from denying approval to same sex couples was a “generally applicable” rule under the Smith test, and hence CSS had no recourse. But Roberts CJ noted that the Smith decision itself said that “strict scrutiny” (the Sherbert test, effectively) would apply where the government agency retained some discretion to waive the legal rule.

A law is not generally applicable if it “invite[s]” the government to consider the particular reasons for a person’s conduct by providing “‘a mechanism for individualized exemptions”.

The Court, per Roberts CJ, at 5-6

Here the rule in relation to foster care arrangements said that it applied “unless an exception is granted by the Commissioner or the Commissioner’s designee, in his/her sole discretion”. Hence the majority of the court was able to find that the Smith decision did not apply. Roberts CJ went on, then, to apply the Sherbert test of strict scrutiny to the City’s decision.

The City claimed that its policy was designed, in general, to discourage discrimination, and for other broad purposes. But Roberts CJ said that it needed to specifically address why it was necessary to impose this rule on this body: “Rather than rely on “broadly formulated interests,” courts must “scrutinize[] the asserted harm of granting specific exemptions to particular religious claimants.”” (at 14).

Once properly narrowed, the City’s asserted interests are insufficient. Maximizing the number of foster families and minimizing liability are important goals, but the City fails to show that granting CSS an exception will put those goals at risk. If anything, including CSS in the program seems likely to increase, not reduce, the number of available foster parents… 

That leaves the interest of the City in the equal treatment of prospective foster parents and foster children. We do not doubt that this interest is a weighty one, for “[o]ur societyhas come to the recognition that gay persons and gay couples cannot be treated as social outcasts or as inferior in dignity and worth.” Masterpiece Cakeshop, 584 U. S., at ___ (slip op., at 9). On the facts of this case, however, this interest cannot justify denying CSS an exception for its religious exercise. The creation of a system of exceptions under the contract undermines the City’s contention that its nondiscrimination policies can brook no departures…The City offers no compelling reason why it has a particular interest in denying an exception to CSS while making them available to others.

The Court, per Roberts CJ, at 14-15.

As for the minority concurrence, written by Alito J and supported by Thomas and Gorsuch JJ, they agreed with the majority’s application of the Sherbert test:

Philadelphia’s ouster of CSS from foster care work simply does not further any interest that can properly be protected in this case. As noted, CSS’s policy has not hindered any same-sex couples from becoming foster parents, and there is no threat that it will do so in the future. 

CSS’s policy has only one effect: It expresses the idea that same-sex couples should not be foster parents because only a man and a woman should marry. Many people today find this idea not only objectionable but hurtful. Nevertheless, protecting against this form of harm is not an interest that can justify the abridgment of First Amendment rights.

Concurrence, per Alito J, at 74.

However, the bulk of Alito J’s brilliant concurrence is devoted to explaining carefully why Smith was wrong, and why it should be over-ruled. His Honour goes back into the history of the free exercise clause and surveys the development of the jurisprudence, and to my mind makes a compelling argument. I will not try to summarise it here, simply to urge anyone interested in this area to read it for themselves. In particular, he is critical of the majority for not addressing the issue in detail, given that the grant of leave to appeal was issued on the very basis that Smith may need to be reconsidered. I think he is correct, and in particular, in its reliance on the specific “exemption” incorporated into the City of Philadelphia’s law, the majority leaves it open for the City to simply remove this exemption and re-implement its policy on a “generally applicable” basis, since Smith formally remains binding. In a memorable phrase, he notes:

This decision might as well be written on the dissolving paper sold in magic shops. The City has been adamant about pressuring CSS to give in, and if the City wants to get around today’s decision, it can simply eliminate the never-used exemption power.

Concurrence, per Alito J, at 8.

Still, the decision overall is one that is to be welcomed. Even with Smith still in place, the majority decision gives a broad meaning to the “exceptions” from the application of that case, and any legislative scheme that has a role for individual government officials to make a discretionary exemption will come under the strict scrutiny Sherbert test. Another interesting feature of the majority ruling is the holding that a scheme for authorising foster-care is not a “public accommodation”, a term used in language across the US forbidding discrimination. (See the Court, at pp 11-12, noting that approval as a foster care parent involved “a customized and selective assessment” and was not to be equated with allowing someone access to a restaurant or a bus service.)

2. The Amish and their plumbing

While the next case was not decided on precisely the same grounds as Fulton, it arguably illustrates a renewed tendency to favour religious freedom in the Supreme Court. In Mast v Fillmore County, Minnesota (594 US ____ (2021);  No 20–7028; July 2, 2021) the issue was whether a group of residents from a group called the Swartzentruber Amish could be required to comply with new rules about plumbing imposed by the local County. As summed by Gorsuch J:

Today’s dispute is about plumbing, specifically the disposal of gray water—water used in dishwashing, laundry,and the like. The Swartzentruber Amish do not have running water in their homes, at least as most would understand it. Water arrives through a single line and is either pumped by hand or delivered by gravity from an external cistern. 

In 2013, Fillmore County adopted an ordinance requiring most homes to have a modern septic system for the disposal of gray water… Responding to this development, the Swartzentruber Amish submitted a letter explaining that their religion forbids the use of such technology and “‘asking in the name of our Lord to be exempt’” from the new rule… Instead of accommodating this request or devising a solution that respected the Amish’s faith, the Minnesota Pollution Control Agency filed an administrative enforcement action against 23 Amish families in Fillmore County demanding the installation of modern septic systems under pain of criminal penalties and civil fines.

Concurrence, per Gorsuch J, at 2.

The Amish were able to suggest an alternative filtration system that would have been acceptable to their religious beliefs, and there was evidence that this had been approved in other States. They filed a claim against the County to stay the order against them, under the Religious Land Use and Institutionalized Persons Act (“RLUIPA”). As noted above, this statute was in effect a Congressional replacement for the Sherbert test, applicable to more limited areas. In this case it seems to have been accepted that the dispute was one relating to “land use”.

The lower courts had ruled against the Amish, but in this US Supreme Court decision that court granted certiorari (leave to appeal) and the case was “remanded to the Court of Appeals of Minnesota for further consideration in light of Fulton v. Philadelphia, 593 U. S. ___ (2021)”. Unlike Fulton, this was not a First Amendment case, but the test applicable under RLUIPA was the Sherbert test that had been applied by both majority and minority in Fulton. Gorsuch J gave the only considered judgment, but he noted that the lower courts had wrongly applied the “strict scrutiny” test required.

As Gorsuch J said:

[T]he County and courts below erredby treating the County’s general interest in sanitation regulations as “compelling” without reference to the specific application of those rules to this community. 

Concurrence, Gorsuch J, at 4.

As well as failing to explain precisely why the interests of the County in public health could not be satisfied by a narrower rule which did not burden the Amish coumunity’s religious freedom, Gorsuch J noted that (as with Fulton) there were discretionary exemptions to the septic system rules which were applied to other groups, and the County had not satisfied the onus it bore to clearly show on the evidence that the alternative systems used in other jurisdictions could not also work for the Amish community in a way which would have satisfied their religious concerns.

In a quote referencing an earlier Supreme Court decision holding that some local restrictions on church meetings for COVID-19 reasons were invalid because they applied rules to churches that were not applied to other groups, his Honour said:

Again, if “the government can achieve its interests in a manner that does not burden religion, it must do so.” Fulton, 593 U. S., at ___ (slip op., at 13) (emphasis added); see also Tandon v. Newsom, 593 U. S. ___, ___ (2021) (per curiam) (slip op., at 3) (“The State cannot ‘assume the worst when people go to worship but assume the best when people go to work’” (quoting Roberts v. Neace, 958 F. 3d 409, 414 (CA6 2020) (per curiam))) 

Concurrence, Gorsuch J, at 7.

Conclusion

The decision not to address the authority of the Smith case by the majority in Fulton will, as Alito J points out, probably generate more litigation to resolve the point. As he says:

Today’s decision will be of no help in other cases involving the exclusion of faith-based foster care and adoption agencies unless by some chance the relevant laws contain the same glitch as the Philadelphia contractual provision on which the majority’s decision hangs. The decision will be even less significant in all the other important religious liberty cases that are bubbling up. 

Concurrence, Alito J, at 10

One of those other “important religious liberty cases” sadly has now been rejected for decision by the court. I have previously mentioned the litigation involving “Arlene’s Flowers” from Washington State, where a florist who politely declined to provide floral decorations for a same-sex wedding, because of her religious convictions, has been sued and ordered to pay a large amount of damages and costs. Unfortunately, for reasons that are not clear, the Supreme Court on 2 July 2021 denied certiorari (refused leave to appeal) in her case: for a good analysis see this article by Steven Smith in First Things. While Justices Thomas, Alito and Gorsuch would have granted leave, it seems that the other 6 members of the court disagreed. Something like this case will have to be considered eventually, and it directly raises the question whether a “neutral” law with a direct and substantial impact on religious freedom can avoid any application of the free exercise clause.

Nevertheless, taken together, the decisions in Fulton and Mast illustrate important features of the protection of religious freedom in the US, and important matters to be considered by other countries in considering how to do this. Enacting rules which seriously burden the religious freedom of citizens should only be done when those rules can be justified for compelling government reasons which cannot be achieved in any other practical way. Even then, such rules should not be supported if they are applied in a discriminatory way as between religious citizens and others. Accommodating religious beliefs is an important value in a diverse society, and even where the rules accommodated seem odd or unusual (not many of us would think that plumbing systems raise religious issues), a multicultural and tolerant community will give the maximum leeway to citizens to live out their fundamental beliefs.