The Catholic Church has been providing fostering services in Philadelphia for over 200 years, supporting and training thousands of foster parents. When a local newspaper reported that CSS would not provide screening for same-sex married couples, the City of Philadelphia ended its contracts with CSS, despite no reports that any same-sex couple had requested such services from CSS. If approached by a same-sex couple, CSS would refer them to another agency, a common practice among fostering agencies. By denying CSS the ability to provide fostering services, the City of Philadelphia makes even fewer foster parents available at a time it has acknowledged there is an urgent need for more foster parents.

In holding that the City of Philadelphia could refuse to contract with Catholic Social Services, the lower federal courts relied heavily on a prior decision of the Supreme Court, Employment Division v. Smith, 494 U.S. 872 (1990). In that case, the Supreme Court said that government rules and actions that burden religious exercise do not violate the Free Exercise Clause where it is “neutral” and “generally applicable.” This means that the government can force people to violate their religious beliefs as long as it requires the same behavior from people that do not share those beliefs.

The Smith decision received significant opposition and, shortly afterward, Congress passed the Religious Freedom Restoration Act (RFRA) to restore the standard to require government actions burdening religious exercise to be the least restrictive way of burdening an important government interest. RFRA was passed with large bipartisan majorities in Congress and signed into law by President Clinton.

The Supreme Court will hear oral arguments on November 4, 2020. One of the questions the Court will hear is whether or not it should overturn Smith. The Center for Law and Religious Freedom filed a brief written by Professors Doug Laycock and Thomas Berg on behalf of Christian Legal Society and a coalition of religious organizations arguing that exceptions to general law for religious conscience have long been recognized in the United States, going back to exemptions to conscription for religious objectors during the Revolutionary War. Smith is inconsistent with the constitutional text and the understanding of those who ratified the First Amendment.

What principle is the Center fighting for? CLS is fighting for the rights of people to live according to their religious conscience without undue government interference or pressure.

Outcome: On June 17, 2021, the U.S. Supreme Court unanimously held in favor of Catholic Social Services. In doing so, the Court, however, stopped short of overruling Employment Division v. Smith holding instead that the City of Philadelphia’s nondiscrimination policy was not generally applicable under Smith because the City maintained full discretion to give exemptions to its contractors. This reservation of authority to grant exemptions triggered strict scrutiny under the Free Exercise Clause, and the City’s interest in its nondiscrimination policies could not satisfy strict scrutiny. Notably, the Court rejected the City’s argument that it should not consider this reservation because the City had never granted an exception under this policy, finding instead that the reservation itself was sufficient.