The Catholic organization that once served thousands of children in Illinois’ foster care system appears unlikely to attempt to use a new U.S. Supreme Court ruling to attempt to restart the foster care programs it shut down a decade ago, rather than submit to new anti-discrimination dictates from Illinois’ state government.
However, the state of Illinois may yet find itself facing either a new legal challenge - or the need to rewrite its rules - as members of the Supreme Court’s conservative majority predict last week’s ruling out of Philadelphia may only be the beginning of a new round of court fights over the balance between anti-discrimination laws meant to protect sexual and gender minorities and the religious exercise protections guaranteed to religious adherents and their organizations under the First Amendment.
On June 17, the Supreme Court’s conservative and progressive wings united to rule 9-0 that the city of Philadelphia had violated the religious free exercise rights of Catholic Social Services.
The case, docketed before the Supreme Court as Fulton v City of Philadelphia, had landed in the federal courts in 2018, when Philadelphia’s city government threatened to cancel CSS’s contract with the city for placement of foster care, unless CSS agreed to certify same-sex couples for foster care placement. CSS had refused to do so, saying such a move would violate Catholic doctrine concerning marriage and family.
CSS sued, asking the federal courts to rule Philadelphia’s decision violated the First Amendment’s prohibition barring government interference in the free exercise of religion.
CSS lost at both the district court level and before the U.S. Third Circuit Court of Appeals, as judges determined Philadelphia’s municipal rules prohibiting discrimination on the basis of sex, gender and sexual orientation weren’t prohibited by the First Amendment. The judges there determined Philadelphia’s anti-discrimination rules were a “neutral and generally applicable policy,” satisfying a standard established in the 1990 Supreme Court ruling, known as Employment Division v Smith.
The Supreme Court agreed to take the case.
While conservative organizations argued for reversal of Smith, the court instead sidestepped the question, ruling 9-0 that exemptions granted by the city of Philadelphia to other organizations, but not to CSS, meant the city had violated CSS’s religious free exercise rights.
That refusal to grant an exception to city rules in the provision of foster care meant “the contract (between Philadelphia and CSS) as a whole contains no generally applicable non-discrimination requirement,” the court’s majority held in an opinion authored by Chief Justice John Roberts.
The legal maneuver appeared to anger members of the court’s conservative majority, who argued in concurring opinions that Smith is bad law, and conflicts with the First Amendment’s religious freedom guarantees.
In one such concurrence, Justice Neil Gorsuch asserted the Fulton decision merely represents a shift in the legal war over the balance between LGBTQIA+ legal protections, and the religious rights of traditionalist conservative religious believers and their faith-based organizations.
Litigation over such legal questions will “slog on,” not only in Philadelphia over its anti-discrimination policies, but in other locales across the country, where governments may continue to move to cut off religious organizations who refuse to renounce their beliefs to retain state and city contracts to provide foster care and other social services, Gorsuch wrote.
“Dodging the question today guarantees it will recur tomorrow,” Gorsuch wrote. “These cases will keep coming until the Court musters the fortitude to supply an answer.”
Illinois could find itself the target of such a case.
In 2011, Illinois presented a similar ultimatum to Catholic Charities, which operated a robust and extensive foster care system in at least four locations, both in the Chicago area and downstate. At that time, in light of perceived state hostility and the Supreme Court’s holding under Smith, Catholic Charities opted to transfer the children in its program to other agencies and shut down.
Peter Breen, a former state legislator and now an attorney with the Thomas More Society, a non-profit that provides legal assistance to religious organizations and individuals defending themselves against alleged violations of their First Amendment rights, said the state’s actions against Catholic Charities has resulted in holes in the state’s foster care system that it has struggled to fill in the decade since.
Thomas More Society was involved in Catholic Charities’ initial legal challenge against the state over its application of its anti-discrimination rules.
Thomas More submitted a so-called amicus brief, or “Friend of the court” brief, to the Supreme Court in the Fulton case, arguing in favor of CSS. The brief centered on Catholic Charities’ experience in Illinois, noting the negative outcomes for children throughout the state as a result of what Breen called the desire of the “Left-wing ideologues who run Illinois state government” to “drive Catholic Charities out” of the foster care system.
“The lesson should be clear: the Court should respect and accommodate the free religious exercise of faith-based agencies because to do so does not conflict with the interest of same-sex couples to become foster parents and, on the other hand, is necessary to prevent harm to children in need of high quality foster care,” lawyers with Thomas More wrote in their amicus brief.
“The Court can support each of these values without sacrificing any, and should therefore do so. To do anything else would be to encourage more initiatives to force faith-based providers of critically needed services for vulnerable children to abandon their religious practices in order to gain the state’s permission to continue to provide such care.”
Breen said he is confident that if the Fulton decision was on the books 10 years ago, Catholic Charities would have been able to fight and win. He said the facts in the Fulton case and the Catholic Charities case in Illinois were “so similar, it was eerie.”
“Fulton is vindication that we were right 10 years ago,” Breen said. “But it’s with sadness, for the thousands of children and foster families whose lives were upended by the state’s actions at that time.”
Breen said he expected the Fulton decision will be cited in lawsuits across the country against similar policies, as it builds on what Breen said is a string of wins for religious freedom advocates asserting First Amendment rights in the face of government action asserting anti-discrimination protections should limit the extent of the free exercise guarantees.
“People on the Left, in particular, want to try to say this ruling has no impact, because it’s ‘narrow,’” Breen said. “But this (Fulton) is a big win.”
He said he hoped a religious social services organization might also step forward to bring such a challenge in Illinois.
However, that challenge is not likely to come from Catholic Charities.
Robert Gilligan, executive director of the Catholic Conference of Illinois, which speaks for Illinois’ Catholic dioceses on matters of public policy, said the Illinois Catholic organizations are “very pleased” with the Fulton decision.
But he said in Illinois, for Catholic Charities, the decision came “unfortunately, nine years too late.”
While the Fulton decision could offer Catholic Charities a possible path to renewing its foster care system, Gilligan said the logistical difficulties of restarting its “once vibrant” foster system mean it is unlikely Catholic Charities would seek to do so.
“We came years ago to a parting of the way,” said Gilligan. “Society has many needs. Serving the poor, and caring for those most at need, is a key aspect of Catholic teaching, and there are many different ways to do it.”