Amicus Curiae Brief — Sharonell Fulton, et al., Petitioners v. City of Philadelphia, Pennsylvania, et al.
Supreme Court briefJun 2, 2020
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No. 19-123
In the Supreme Court of the United States
_____________________________
SHARONELL FULTON, et al.,
Petitioners,
v.
CITY OF PHILADELPHIA, PENNSYLVANIA,
et al.,
Respondents.
_____________________________
On Writ of Certiorari to the United States
Court of Appeals for the Third Circuit
______________________________
BRIEF FOR NEBRASKA, ARIZONA, AND OHIO
AS AMICI CURIAE IN SUPPORT OF
PETITIONERS
______________________________
DOUGLAS J. PETERSON
Attorney General of Nebraska
DAVID T. BYDALEK
Chief Deputy Attorney General
JAMES A. CAMPBELL
Solicitor General
Counsel of Record
OFFICE OF THE NEBRASKA
ATTORNEY GENERAL
2115 State Capitol
Lincoln, NE 68509
(402) 471-2682
jim.campbell@nebraska.gov
Counsel for Amici Curiae
[Additional counsel listed at end of brief]
i
TABLE OF CONTENTS
TABLE OF AUTHORITIES ..................................... iii
INTEREST OF AMICI CURIAE ............................... 1
SUMMARY OF ARGUMENT.................................... 2
ARGUMENT .............................................................. 5
I.
Faith-based organizations, both historically
and today, provide essential charitable services for foster children. ...................................... 5
A. Faith-based organizations throughout our
nation’s history have always been free to
serve foster children. ...................................... 6
B. Faith-based organizations continue to
provide indispensable charitable work
caring for foster children. ............................ 10
1. Religious organizations excel at
recruiting and retaining a diverse pool
of high-quality foster parents willing to
serve the neediest children..................... 12
2. Many States rely on religious organizations when administering their fostercare programs. ........................................ 19
II. Philadelphia’s ban on Catholic Social Services’ foster-care ministry must survive strict
scrutiny. ............................................................. 22
ii
III. Philadelphia’s ban on Catholic Social Services’ foster-care ministry fails strict scrutiny. ... 29
A. Philadelphia’s nondiscrimination interests do not satisfy strict scrutiny. ............... 29
B. Philadelphia’s Establishment Clause interests do not satisfy strict scrutiny. ........... 34
CONCLUSION ......................................................... 38
iii
TABLE OF AUTHORITIES
Cases
American Legion v. American Humanist
Association,
139 S. Ct. 2067 (2019) .......................................... 35
Brown v. Entertainment Merchants Association,
564 U.S. 786 (2011) .............................................. 32
Burwell v. Hobby Lobby Stores, Inc.,
573 U.S. 682 (2014) .................................. 32, 33, 38
Christian Legal Society v. Martinez,
561 U.S. 661 (2010) .............................................. 26
Church of the Lukumi Babalu Aye, Inc. v. City of
Hialeah,
508 U.S. 520 (1993) .............................................. 29
Cutter v. Wilkinson,
544 U.S. 709 (2005) .............................................. 38
Employment Division v. Smith,
494 U.S. 872 (1990) ........................................ 22, 24
Estate of Thornton v. Caldor, Inc.,
472 U.S. 703 (1985) .............................................. 37
Free Enterprise Fund v. Public Company
Accounting Oversight Board,
561 U.S. 477 (2010) .............................................. 27
Gonzales v. O Centro Espirita Beneficente
Uniao do Vegetal,
546 U.S. 418 (2006) .................................. 30, 31, 33
Grutter v. Bollinger,
539 U.S. 306 (2003) .............................................. 31
Hosanna-Tabor Evangelical Lutheran
Church & School v. EEOC,
565 U.S. 171 (2012) ....................................... passim
iv
Kedroff v. St. Nicholas Cathedral of Russian
Orthodox Church in North America,
344 U.S. 94 (1952) ................................................ 23
Larkin v. Grendel’s Den, Inc.,
459 U.S. 116 (1982) ........................................ 36, 37
Leshko v. Servis,
423 F.3d 337 (3d Cir. 2005) .................................... 9
Locke v. Davey,
540 U.S. 712 (2004) .............................................. 28
Loving v. Virginia,
388 U.S. 1 (1967) .................................................. 34
Marsh v. Chambers,
463 U.S. 783 (1983) ........................................ 26, 35
Masterpiece Cakeshop, Ltd. v. Colorado Civil
Rights Commission,
138 S. Ct. 1719 (2018) ................................... passim
Mitchell v. Helms,
530 U.S. 793 (2000) .............................................. 36
Obergefell v. Hodges,
135 S. Ct. 2584 (2015) .................................... 31, 34
Peña-Rodriguez v. Colorado,
137 S. Ct. 855 (2017) ............................................ 33
Serbian Eastern Orthodox Diocese for the United
States of America & Canada v. Milivojevich,
426 U.S. 696 (1976) .............................................. 24
Thomas v. Review Board of the Indiana
Employment Security Division,
450 U.S. 707 (1981) .............................................. 25
Town of Greece, New York v. Galloway,
572 U.S. 565 (2014) .............................................. 34
v
Trinity Lutheran Church of Columbia, Inc.
v. Comer,
137 S. Ct. 2012 (2017) .........................23, 25, 26, 28
Van Orden v. Perry,
545 U.S. 677 (2005) .............................................. 35
Wisconsin v. Yoder,
406 U.S. 205 (1972) .............................................. 30
Zelman v. Simmons-Harris,
536 U.S. 639 (2002) .............................................. 36
Statutes
42 U.S.C. § 2000a(b)................................................. 33
42 U.S.C. § 2000e-1(a) .............................................. 33
Ala. Code § 26-10D-5................................................ 22
Kan. Stat. Ann. § 60-5322 ........................................ 22
Miss. Code. Ann. § 11-62-5(2) .................................. 22
N.D. Cent. Code § 50-12-07.1................................... 22
Okla. Stat. tit. 10A, § 1-8-112 .................................. 22
S.D. Codified Laws § 26-6-41 ................................... 22
Tex. Hum. Res. Code Ann. § 45.004 ........................ 22
Other Authorities
Anna Claire Vollers, Religious freedom or
taxpayer-funded discrimination? Child
welfare bill prompts debate, Alabama.com
(Feb. 8, 2017), bit.ly/3bXGYmK ........................... 21
AFCARS Report, U.S. Dep’t of Health and Hum.
Servs. (2018), bit.ly/2LyUKS4.............................. 10
vi
Benjamin Hardy, In Arkansas, One Faith-Based
Group Recruits Almost Half of Foster Homes,
The Chron. of Soc. Change (Nov. 28, 2017),
bit.ly/2T6mP7F ............................................... 14, 21
Brenda G. McGowan, Historical Evolution of
Child Welfare Services, in Child Welfare for
the Twenty-First Century: A Handbook of
Practices, Policies, and Programs (Gerald
P. Mallon & Peg McCartt Hess eds., 2005) ... 6, 7, 8
Catherine E. Rymph, Raising Government
Children: A History of Foster Care and
the American Welfare State (2017) ................... 6, 7
David Ray Papke, Pondering Past Purposes:
A Critical History of American Adoption Law,
102 W. Va. L. Rev. 459 (1999) ................................ 7
Evolving Roles of Public and Private Agencies
in Privatized Child Welfare Systems,
U.S. Dep’t of Health and Hum. Servs.
(March 2008), bit.ly/2T0GMg6 ............................... 6
Grace Abbott, The Child and the State (1938) ......... 8
Laura Radel et al., Substance Use, the Opioid
Epidemic, and the Child Welfare System:
Key Findings from a Mixed Methods Study,
U.S. Dep’t of Health and Hum. Servs.
(Mar. 7, 2018), bit.ly/2WUKjxC ........................... 11
Legislative Testimony of Steven Roach,
Executive Director of Catholic Charities
Diocese of Springfield, Illinois, supporting
Kansas’s Senate Bill 401 (Mar. 20, 2018),
bit.ly/2LVtptH ................................................ 18, 19
LeRoy Ashby, Endangered Children:
Dependency, Neglect, and Abuse in
American History (1997) ........................................ 9
vii
Letter from Henry McMaster, Governor of South
Carolina, to Steven Wagner, Acting Assistant
Secretary of U.S. Admin. for Children and
Families (Feb. 27, 2018), bit.ly/3680L1w ............ 20
Letter from Ken Paxton, Attorney General of
Texas, to Lynn Johnson, Assistant Secretary
of U.S. Admin. for Children and Families
(Dec. 17, 2018), bit.ly/2LCnucC ..................... 21, 22
Linda Gordon, Child Welfare: A Brief History,
bit.ly/3blp4KA ......................................................... 7
Manya A. Brachyear, Three Dioceses Drop Foster
Care Lawsuit, Chi. Trib. (Nov. 15, 2011),
bit.ly/3g0cWlz ....................................................... 17
Mary Ellen Cox et al., Recruitment and
Foster Family Services,
29 J. Sociology & Social Welfare 151
(2002) ...................................................12, 13, 16, 18
Mary L. Gautier & Jonathon L. Wiggins, 2014
Annual Survey Final Report, Catholic Charities
USA (June 2015), bit.ly/2XigDdY ........................ 19
Michael Howell-Moroney, Faith-Based Partnerships
and Foster Parent Satisfaction,
36 J. Health and Hum. Servs. Admin. 228
(2013) ...................................................13, 14, 16, 17
Michael Howell-Moroney, On the Effectiveness
of Faith-Based Partnerships in Recruitment of
Foster and Adoptive Parents,
19 J. of Pub. Mgmt. & Soc. Pol’y 168 (2013) ........ 15
Michael Howell-Moroney, The Empirical Ties
between Religious Motivation and Altruism
in Foster Parents,
5 Religions 720 (2014) .................................... 12, 18
viii
Naomi Cahn, Perfect Substitutes or the Real
Thing?,
52 Duke L.J. 1077 (2003) ................................... 7, 8
Nebraska Unicameral Judiciary Committee
Transcript (Feb. 17, 2016),
bit.ly/3cAdUD2 ......................................... 13, 15, 20
Non-Relative Homes, Who Cares: A National
Count of Foster Homes and Families,
bit.ly/3bMboZc ...................................................... 17
Priscilla Ferguson Clement, Families and
Foster Care: Philadelphia in the Late
Nineteenth Century, in Growing up in
America: Children in Historical Perspective
(N. Ray Hiner & Joseph M. Hawes eds., 1985) ..... 9
Ron Haskins et al., Keeping Up with the
Caseload: How to Recruit and Retain Foster
Parents, Brookings Institution (Apr. 24, 2019),
brook.gs/3fRoeZz ................................................... 16
Sandra-Stukes Chipungu & Tricia B.
Bent-Goodley, Meeting the Challenges
of Contemporary Foster Care,
14 The Future of Children 74 (2004) ................... 13
Shamber Flore, My Adoption Saved Me,
The Detroit News (Mar. 7, 2018),
bit.ly/3cEOPaj ....................................................... 15
Stephen Monsma, Pluralism and Freedom:
Faith-based Organizations in a Democratic
Society (2012).................................................. 19, 20
Susan Vivian Mangold, Protection, Privatization,
and Profit in the Foster Care System,
60 Ohio St. L.J. 1295 (1999)................................... 6
ix
Thomas C. Berg, Progressive Arguments for
Religious Organizational Freedom: Reflections
on the HHS Mandate,
21 J. Contemp. Legal Issues 279 (2013) .............. 20
Youth in Care, Who Cares: A National Count
of Foster Homes and Families,
bit.ly/3dW0fGH ..................................................... 17
1
INTEREST OF AMICI CURIAE
The Amici States of Nebraska, Arizona, and Ohio
operate foster-care programs for needy and neglected
children, and they partner with private organizations—including faith-based groups—when carrying
out that crucial work.
This case raises critical legal issues surrounding
the relationships between States and private religious foster-care organizations. The petitioners’ freeexercise claim asks whether local governments may
exclude those faith-based organizations because of
their religious beliefs. And the respondents’ Establishment Clause defense asks whether local governments may include those groups if they operate according to their religious beliefs. Amici States seek
guidance on these issues.
Clarity on the free-exercise question is important.
States often face political pressure to end their partnerships with religious foster-care organizations. A
clear pronouncement that the Free Exercise Clause
forbids States from excluding those groups because of
their beliefs will help States respond to those demands.
Equally important is guidance on the Establishment Clause issue. Many States want to keep working with faith-based agencies because their longstanding partnership with those groups is indispensable to the foster care they provide. And many of
those States do not want to force religious organizations to violate their beliefs as the cost of continuing
their foster-care services. Rejecting the respondents’
Establishment Clause arguments would ensure that
States may continue their partnerships with faith-
2
based child-placing agencies. And it would make clear
that the Establishment Clause poses no barrier to religious foster-care organizations’ operating consistently with their beliefs about marriage.
Amici States seek a ruling based on general principles that will provide national guidance. Decisions
turning on factual peculiarities, such as idiosyncratic
comments by government officials, are not as helpful
in bringing national clarity to important issues of ongoing debate. States and political subdivisions are
currently navigating these legal issues, and both the
freedom of religious organizations and the welfare of
our nation’s children are at stake. General guidance
is in order.
SUMMARY OF ARGUMENT
Philadelphia is forcing a religious organization to
stop charitable work that it has been doing for more
than a century and that countless other religious organizations have been doing since our nation’s founding. Because there is no compelling reason for this—
indeed, all it does is reduce foster-care resources and
threaten to undermine the welfare of children—Philadelphia has violated the Free Exercise Clause.
I. Faith-based organizations in America have always been free to care for foster children according to
their faith. During colonial times and for a century after the founding, those organizations cared for needy
and neglected children with little to no government
involvement. When the States began to get more involved in the late 1800s, they did so mostly by funding
private organizations—including religious ones—that
were already caring for children. It was not until
many decades later that the States assumed a more
3
active role. But even then, they continued to partner
with faith-based organizations to provide foster-care
services.
Those partnerships continue to this day. Faithbased organizations provide vital resources to States
that are heavily burdened by the difficulties facing
the modern foster-care system. By appealing to prospective foster parents based on a shared religious
calling, faith-based groups have been particularly effective at recruiting foster parents. And by providing
strong community support based on a common faith,
those organizations have excelled at retaining foster
parents for the long haul. In addition, foster parents
who work with faith-based agencies tend to perform
well, foster more children, and volunteer for some of
the most difficult placements.
Given the success of these organizations, many
States continue to rely on them. For instance, approximately 30 percent of the child-placing agencies in Nebraska and Alabama are religious groups. And 40 percent of foster parents in Arkansas are recruited
through a faith-based organization. Statistics like
these show that many States—and the numerous foster children they serve—would face great hardships if
religious organizations are excluded from the fostercare system.
II. This background demonstrates why strict scrutiny applies to Catholic Social Services’ free-exercise
claim. While Catholic Social Services makes a compelling argument that facts peculiar to this case prove a
lack of religious neutrality, general principles equally
establish that strict scrutiny is the proper standard.
In particular, governmental action is suspect—and
4
must undergo rigorous review—when it excludes a religious organization, because of its beliefs, from carrying out a charitable religious mission that faith-based
organizations have been free to pursue throughout
our nation’s history. Since that is what Philadelphia
has done, strict scrutiny applies. Adopting this rule—
more so than a decision turning on comments by Philadelphia officials or other idiosyncratic facts in this
case—would provide much-needed guidance to States
and local subdivisions administering our nation’s foster-care system.
III. Facing the rigors of strict scrutiny, Philadelphia has not satisfied that demanding standard. The
city asserts an interest in preventing discrimination,
but that interest fails under the facts of this case.
Catholic Social Services’ decision to operate consistently with its religious beliefs causes no tangible
harm. Dozens of other agencies are available to evaluate and approve same-sex couples wanting to adopt.
The only tangible harm comes from Philadelphia’s decision to exclude Catholic Social Services because that
reduces foster-care resources and jeopardizes the welfare of children.
Without tangible harm, Philadelphia relies on its
desire to shield the dignity of its citizens. But that interest does not override a religious organization’s
choice not to recognize a same-sex marriage when, as
here, that choice is “well understood in our constitutional order as an exercise of religion.” Masterpiece
Cakeshop, Ltd. v. Colo. Civil Rights Comm’n, 138 S.
Ct. 1719, 1727 (2018). Catholic Social Services declines to recognize same-sex marriages only when
choosing foster-parent partners for its foster-care
5
ministry. The group otherwise provides its charitable
services to LGBT individuals. Under these circumstances, Philadelphia’s asserted interests cannot
overcome Catholic Social Services’ legitimate exercise
of religion.
Lastly, Philadelphia’s professed Establishment
Clause interest cannot satisfy strict scrutiny. The historical record—which shows that faith-based organizations have been caring for foster children since our
nation’s founding, and that States have been contracting with those organizations and subsidizing their
work since at least the late 1800s—refutes any Establishment Clause argument. If that were not enough,
Philadelphia’s system of true private choice further
alleviates any Establishment Clause concerns. The
funds that pass through Catholic Social Services to
foster parents only do so because of those parents’ independent choice to work with a religious group. The
Establishment Clause does not forbid that.
ARGUMENT
I. Faith-based organizations, both historically
and today, provide essential charitable services for foster children.
Faith-based organizations have been—and continue to be—indispensable to serving foster children
in America. The historical record shows that they
have been doing this critical work since long before
the government became actively involved. And their
current operations demonstrate that they continue to
play a substantial role in meeting the needs of vulnerable children.
6
A. Faith-based organizations throughout
our nation’s history have always been free
to serve foster children.
Our nation’s “history depicts a privately operated
child welfare system that preceded the entry of public
agency participation.” Susan Vivian Mangold, Protection, Privatization, and Profit in the Foster Care System, 60 Ohio St. L.J. 1295, 1298 (1999); accord Evolving Roles of Public and Private Agencies in Privatized
Child Welfare Systems, U.S. Dep’t of Health and
Hum. Servs., at 2 (March 2008), bit.ly/2T0GMg6
(“[C]hild welfare services actually originated in the
private sector”). The historical record tells how “foster
care had originally been provided by private agencies”
and “public agencies later join[ed] as partners.” Mangold, supra, at 1298. Faith-based organizations have
always been at the forefront of this work.
1. “[F]oster care in the United States extends back
to various colonial practices” such as “indenture and
apprenticeship.” Catherine E. Rymph, Raising Government Children: A History of Foster Care and the
American Welfare State 18 (2017). During that time
and extending into the early years of the republic,
most needy or neglected children “were cared for in
almshouses . . . until the age of eight or nine,” while
older children were indentured or apprenticed. Brenda G. McGowan, Historical Evolution of Child Welfare
Services, in Child Welfare for the Twenty-First Century: A Handbook of Practices, Policies, and Programs
10, 12 (Gerald P. Mallon & Peg McCartt Hess eds.,
2005). Those older children would be taken in by families, cared for, and taught work skills in exchange for
7
their labor. David Ray Papke, Pondering Past Purposes: A Critical History of American Adoption Law,
102 W. Va. L. Rev. 459, 460–61 (1999).
“A few private institutions for orphans were also
established during the early colonial period. The first
such orphanage in the United States was the Ursuline Convent,” a Catholic institution “founded in New
Orleans in 1727.” McGowan, supra, at 12. Later,
America saw a “dramatic increase in the number of
orphanages,” particularly during the second half of
the 1800s. Id. at 13. “[B]y 1880 there were over six
hundred orphanages in the United States serving
more than fifty thousand children.” Rymph, supra, at
19. “Most were privately run by religious and charitable groups,” Linda Gordon, Child Welfare: A Brief
History, bit.ly/3blp4KA, and “[a]lmost half of children
in orphanages at the end of the nineteenth century
were living in Catholic institutions,” Rymph, supra,
at 19.
In the middle of the 1800s, theologian Charles Loring Brace began advocating for an alternative to institutional settings for children. Rymph, supra, at 20–
21. Believing that children need “the wholesome effects of family life,” he “created the Children’s Aid Society” in New York City in 1853 and “soon instituted
his famous ‘placing out’ program, better known today
as the ‘orphan trains.’” Id. at 21. That program, which
quickly expanded from New York to “most of the other
major eastern cities,” sent homeless or destitute children to live with religious families, mainly in rural locations. McGowan, supra, at 14; see also Naomi Cahn,
8
Perfect Substitutes or the Real Thing?, 52 Duke L.J.
1077, 1091 (2003) (“Mid-nineteenth-century childsaving organizations” like the Children’s Aid Society
placed children “with foster families”). Mirroring
what we now call foster care, “parents temporarily
‘delegated’ [their parental] rights” to these families
and would “reclaim[ ] . . . their children” once their
circumstances improved. Cahn, supra, at 1094.
A related faith-based trend—known as the Children’s Home Society movement—also began spreading in the late 1800s. McGowan, supra, at 14. That
movement saw private organizations serve as “statewide child-placing agencies under Protestant auspices,” with those groups “provid[ing] free foster homes
for dependent children.” Ibid. “[B]y 1916, there were
36 Children’s Home Societies, located primarily in
midwestern and southern states.” Ibid.
2. After leaving foster care in the private sector for
so long, many state and local governments began to
reassess their role in the latter part of the 1800s.
Starting slowly, most States “drifted into the policy of
aiding private institutions because they were unwilling to accept responsibility for the care of the dependent, and because it seemed to be cheaper to grant
some aid to private institutions than for the state to
provide public care.” McGowan, supra, at 18 (quoting
Grace Abbott, The Child and the State 15 (1938)).
New York State is a prime example: by the late 1800s,
local communities there “paid a per capita subsidy to
voluntary, primarily sectarian, agencies for the care
of dependent children.” Ibid.
9
Pennsylvania followed this general pattern of delayed governmental involvement in foster care. The
responsibility for placing children in foster homes
originally fell on private organizations. Leshko v. Servis, 423 F.3d 337, 343 (3d Cir. 2005) (citing LeRoy
Ashby, Endangered Children: Dependency, Neglect,
and Abuse in American History 55–61 (1997)). And
faith-based organizations, such as the Home Missionary Society of Philadelphia, played a prominent role.
Id. at 343–44 (citing Priscilla Ferguson Clement, Families and Foster Care: Philadelphia in the
Late Nineteenth Century, in Growing up in America:
Children in Historical Perspective 135, 139 (N. Ray
Hiner & Joseph M. Hawes eds., 1985)); see also Pet.
App. 253a–54a (testifying about the care that the Roman Catholic Church in Philadelphia provided in the
1790s in response to the “yellow fever” outbreak).
Pennsylvania law did not give the government authority to “supervis[e] the placement of children in
foster care” until the early 1900s. Leshko, 423 F.3d at
344. But even then, the government left the placement work to private entities, many of which, like the
Home Missionary Society, were religious in nature.
3. The story of Catholic Social Services in Philadelphia reflects this history. In 1917, when the group began a bureau dedicated to foster care, there was no
active “government involvement with th[at] program.” Pet. App. 254a. The “religious sisters” who ran
Catholic Social Services’ foster ministry would learn
through the community “that a child was at risk,” and
“they would do a home evaluation.” Ibid. If “the child
10
needed to be removed,” the sisters would place him or
her in a foster home and track “the child’s progress.”
Ibid.
It was not until decades later—in the middle of the
1900s—that the government started to contract with
Catholic Social Services to provide foster-care services. Pet. App. 255a. But that did not bring much
governmental involvement at first. Ibid. Catholic Social Services initially retained “tremendous” authority: it would decide whether to remove a child and
where to “place the child”; then it would “simply advise the city” on the status. Ibid. By the 1970s, Philadelphia had finally assumed a more active role in removing and placing children, but it continued to contract with Catholic Social Services and other private
agencies to evaluate foster families. Id. at 256a. Fast
forward to today, and the city now asserts total power
over foster-care work within the city limits. A religious organization in Philadelphia cannot “provide
foster-care services without a government contract.”
Ibid.
B. Faith-based organizations continue to
provide indispensable charitable work
caring for foster children.
The foster-care system is in a state of crisis. Nearly
half a million children currently need care. AFCARS
Report, U.S. Dep’t of Health and Hum. Servs., at 1
(2018), bit.ly/2LyUKS4. But there are not enough resources to meet those needs. This has left many state
agencies and officials feeling “overwhelmed,” particularly as they “face increasing shortages of foster
11
homes.” Laura Radel et al., Substance Use, the Opioid
Epidemic, and the Child Welfare System: Key Findings from a Mixed Methods Study, U.S. Dep’t of
Health and Hum. Servs., at 7 (Mar. 7, 2018), bit.ly/
2WUKjxC.
States need all available resources to navigate
this predicament. Vital to their efforts are their ongoing partnerships with a broad array of private organizations, including the faith-based groups that have
excelled in this work for centuries.
The need to ensure a diverse selection of childplacing organizations is critical. Different groups develop different expertise and target different audiences for their recruiting efforts. The more groups
there are, and the more varied they are, the more effective their collective recruiting will be. Also, because
fostering children is difficult work, people often require a deep level of comfort and support before they
commit to the task. Allowing prospective foster parents to choose from a broad collection of child-placing
agencies increases the likelihood that they will find
just the right organization to serve as their support
system. And when States generate a large pool of diverse foster parents, that benefits kids by putting
more children into homes and by facilitating a better
fit between the needs of individual children and the
strengths of specific foster families.
12
As explained below, religious foster-care organizations excel at recruiting and retaining a diverse roster of first-rate foster parents. Because of this, many
States rely significantly on their work.
1. Religious organizations excel at recruiting and retaining a diverse pool of
high-quality foster parents willing to
serve the neediest children.
a. Religious child-placing organizations are effective recruiters of foster families. They often focus on
recruiting people who share their beliefs. This is a
successful strategy since people of faith motivated by
child welfare “have a higher probability” than others
of taking “a foster child in[to] their homes.” Michael
Howell-Moroney, The Empirical Ties between Religious Motivation and Altruism in Foster Parents, 5
Religions 720, 731 (2014) (hereinafter “Howell-Moroney, Empirical Ties”). Their inclination to foster children makes sense because a primary “motive for fostering is to fulfill religious beliefs by helping a child,”
Mary Ellen Cox et al., Recruitment and Foster Family
Services, 29 J. Sociology & Social Welfare 151, 171
(2002), thus following core religious teachings about
caring for orphans, e.g., James 1:27 (English Standard) (“pure” religion cares for “orphans . . . in their
afflictions”); Quran 2:215 (“Whatever you spend of
good is [to be] for . . . orphans”).
Bill Williams, CEO of Compass, a faith-based
child-placing agency in Nebraska, has described the
value of recruitment rooted in shared religious duty:
13
“Our [organization’s] motivation to serve children in
need came from our faith and we were convinced that
others within the church would feel likewise. . . . We
went to our local churches to share the message that
Nebraska needs foster parents, and our message resonated and people answered the call.” Neb. Unicameral Judiciary Comm. Transcript at 94–95 (Feb. 17,
2016), bit.ly/3cAdUD2 (hereinafter “Neb. Leg. Testimony”). This common religious mission is one reason
why “[r]ecruitment through faith-based organizations” is so “effective.” Sandra-Stukes Chipungu &
Tricia B. Bent-Goodley, Meeting the Challenges of
Contemporary Foster Care, 14 The Future of Children
74, 83 (2004).
Faith-based organizations thrive not only in enlisting coreligionists but also in building a racially diverse pool of foster parents. Studies show that recruitment through religious groups like churches is “particularly influential . . . with African-Americans.” Cox,
supra, at 155. That is why faith-based organizations
like One Church One Child have been successful
“work[ing] with state child welfare agencies and African-American churches” to find and engage “AfricanAmerican foster and adoptive parents.” Id. at 171.
States benefit immensely when religious organizations recruit foster families. Consider Arkansas’s
experience working with the CALL, a faith-based organization that “recruits families out of local churches, trains them[,] and then provides support.” Michael Howell-Moroney, Faith-Based Partnerships and
Foster Parent Satisfaction, 36 J. Health and Hum.
14
Servs. Admin. 228, 233 (2013) (hereinafter “HowellMoroney, Faith-Based Partnerships”). One study
found that the group’s “targeted recruitment strategy” is “one of the reasons for [its] success.” Id. at 234.
Much like Compass in Nebraska, the CALL goes to
Christian churches, “communicate[s] the great need
for foster and adoptive parents,” and “outline[s] the
Biblical basis for fostering and adoption” by “citing
many verses of Scripture.” Ibid.
Beki Dunagan, Deputy Director of Arkansas Division of Children and Family Services, said that comparing foster-care services in the State before and after the CALL is “like day and night.” Benjamin
Hardy, In Arkansas, One Faith-Based Group Recruits
Almost Half of Foster Homes, The Chron. of Soc.
Change (Nov. 28, 2017), bit.ly/2T6mP7F. According to
Arkansas, the CALL has become “the source of 40 percent of all foster homes” in the State, and it moves
foster applicants through the approval process nearly
two times faster than the government does. Ibid. Because of this, the State “consider[s] [t]he CALL an indispensable partner” in its foster-care work. Ibid.; see
also Howell-Moroney, Faith-Based Partnerships, at
233–34 (Arkansas’s Senate “passed a resolution formally recognizing the CALL’s accomplishments”).
Unfortunately, the exclusion of faith-based childplacing organizations will likely reduce available foster homes. Studies involving the CALL support this
concern. Notably, 36 percent of foster parents recruited through the CALL said that they would not
have become foster parents without the group’s work,
15
and 40 percent were not sure. Michael Howell-Moroney, On the Effectiveness of Faith-Based Partnerships
in Recruitment of Foster and Adoptive Parents, 19 J.
of Pub. Mgmt. & Soc. Pol’y 168, 176–77 (2013).
One reason for this is that some people of faith
cannot commit to the demanding task of fostering
children—work they consider central to their religion—if they are unable to partner with an organization that shares their beliefs. According to Bill Williams, the CEO of Compass in Nebraska, many of his
foster parents have told him that they “wouldn’t have
become a foster parent if [they] couldn’t have partnered with a faith-based agency.” Neb. Leg. Testimony, supra, at 95. As he explained: “The decision to
be a foster parent is a very personal one. Choosing an
agency that can identify with a foster family and relate to them on the deepest level of faith is important”
for many people. Ibid.; see also Shamber Flore, My
Adoption Saved Me, The Detroit News (Mar. 7, 2018),
bit.ly/3cEOPaj (woman explaining that her foster parents partnered with a Catholic organization and
“would not have [worked] with another agency”). At
least for some prospective foster parents, the inability
to partner with a child-placing agency that shares
their faith is a deal-breaker.
b. Successful recruitment, while critical, is not all
that matters. Also important is ensuring that foster
parents stay the course. It is no good getting people to
sign up, only to see them quickly walk away. Faithbased child-placing organizations do a great job at
16
minimizing foster-parent dropouts and keeping them
engaged for the long haul.
High foster-parent turnover is a huge problem
plaguing States. “[B]etween 30 to 60 percent of foster
parents quit within their first year.” Howell-Moroney,
Faith-Based Partnerships, at 230; see also Ron
Haskins et al., Keeping Up with the Caseload: How to
Recruit and Retain Foster Parents, Brookings Institution (Apr. 24, 2019), brook.gs/3fRoeZz (“[B]etween 30
to 50 percent of foster families step down each year.”).
“[M]any quit because of burnout and frustration. One
of the most oft cited reasons in the literature for foster
parent burnout is a perceived or real lack of support.”
Howell-Moroney, Faith-Based Partnerships, at 230.
Faith-based organizations effectively counter this
leading cause of burnout by providing foster families
with strong support and community founded on a
common faith. Those groups work seamlessly with the
religious communities in which their foster parents
already live, tapping into “a social network that can
provide additional information and support.” Cox, supra, at 155. Another source of support is the private
funding donated to many faith-based child-placing
agencies, which they use to provide additional resources to their foster families. Pet. App. 256a (testifying that Catholic Social Services spends millions of
dollars each year in private donations on its child-welfare services). Given all this added support, foster
parents that come through religious organizations
typically stick with it “for more years” than the average foster parent does. Cox, supra, at 166; see also
17
Howell-Moroney, Faith-Based Partnerships, at 228
(finding that foster parents who work with faithbased child-welfare organizations “report[ ] much
higher levels of satisfaction” during the early stages
of the licensing process than foster parents from “the
national sample”).
Statistics from Illinois further suggest that excluding religious foster-care providers hurts recruitment and retention. Illinois had 11,386 non-relative
foster homes in 2012, see Non-Relative Homes, Who
Cares: A National Count of Foster Homes and Families, bit.ly/3bMboZc (hereinafter “Non-Relative
Homes Statistics”), which is approximately when the
State forced many faith-based agencies to shut down
their foster-care services, Manya A. Brachyear, Three
Dioceses Drop Foster Care Lawsuit, Chi. Trib. (Nov.
15, 2011), bit.ly/3g0cWlz. But by 2019, the number of
non-relative foster homes fell nearly in half, plummeting to only 6,034, see Non-Relative Homes Statistics, supra, even though the total amount of Illinois
children in foster or congregate care remained fairly
stable during that time, see Youth in Care, Who
Cares: A National Count of Foster Homes and Families, bit.ly/3dW0fGH (falling by only 9 percent).
c. While ensuring a sufficient quantity of foster
parents is important, quality is also essential. And
when it comes to finding great foster parents, faithbased agencies have a strong track record.
18
“[R]eligiously motivated foster parents are, on average, more likely to possess altruistic motives for fostering.” Howell-Maroney, Empirical Ties, at 727; accord Cox, supra, at 155 (“[F]oster parents who were
recruited through church were more likely to be altruistically motivated and more interested in the general
welfare of children than those who were recruited using other methods.”) And “altruistically-motivated
foster parents are among the most desirable”—“more
likely” to receive “higher ratings by their social
worker.” Howell-Maroney, Empirical Ties, at 722. Because faith-based organizations focus on finding these
kinds of foster parents, they consistently receive high
rankings “in meeting positive outcomes for children.”
Legislative Testimony of Steven Roach, Executive Director of Catholic Charities Diocese of Springfield, Illinois, supporting Kansas’s Senate Bill 401 at 1 (Mar.
20, 2018), bit.ly/2LVtptH (hereinafter “Roach Testimony”).
Not only do foster parents from faith-based agencies tend to receive high rankings, they also generally
take in more children. Howell-Maroney, Empirical
Ties, at 732. (“[R]eligious altruists . . . have a greater
number of foster children”). That is critical, of course,
because a willingness to take in additional foster kids
multiplies the placements available for children in
need.
Religious organizations are also more likely to accept difficult placements, such as children who have
been abused. Cox, supra, at 171 (“[F]oster families
who belong to a place of worship [are] more willing to
19
foster children who have been deprived or abused
than families who did not belong to a place of worship”). And many faith-based groups have focused
on—and been recognized for their success in—placing
special-needs children. Declaration of Jennifer
Allmon, Texas v. Azar, No. 3:19-CV-00365, ¶¶ 8, 30
(S.D. Tex. Jan. 30, 2020) (ECF No. 15-1) (“Catholic
foster care agencies are particularly effective at . . .
helping place . . . children with disabilities.”); Roach
Testimony, supra, at 1 (“A plaque from the [State of
Illinois] hung in [Catholic Charities’] office with the
inscription, ‘In recognition of outstanding service in
finding adoptive homes for special needs children.’”).
2. Many States rely on religious organizations when administering their fostercare programs.
Many States depend on the work of religious foster-care organizations. While statistics are often difficult to find, the best evidence indicates that faithbased groups are responsible for a “significant” number of foster placements and that they are a “substantial part” of the foster-care field. Stephen Monsma,
Pluralism and Freedom: Faith-based Organizations
in a Democratic Society 29 (2012).
The most reliable data available about a decade
ago showed that two faith-based organizations—
Catholic Charities and Lutheran Social Services—
were responsible for placing nearly 10 percent of children in foster care. Id. at 30; see also Mary L. Gautier
& Jonathon L. Wiggins, 2014 Annual Survey Final
20
Report, Catholic Charities USA, at 46 (June 2015),
bit.ly/2XigDdY (Catholic Charities provided fostercare services for 12,737 children in 2014). There is little doubt that “faith-based agencies are a large, crucial—many would say indispensible—part of the foster care system.” Monsma, supra, at 30. Chuck Johnson, the CEO of the National Council for Adoption,
put it this way: if faith-based groups “would disappear
overnight[,] the whole system would collapse on itself.” Thomas C. Berg, Progressive Arguments for Religious Organizational Freedom: Reflections on the
HHS Mandate, 21 J. Contemp. Legal Issues 279, 310
(2013) (citation omitted).
In Nebraska, for example, the State “contracts
with 36 licensed placing agencies, 10 of which are
faith based.” Neb. Leg. Testimony, supra, at 48. That
means approximately 28 percent of Nebraska’s childplacing agencies are religious organizations. Those
agencies include not only “one of the largest foster
care providers in the state,” id. at 77, but also groups
recognized for their “success” and “diversity,” id. at
94. In short, “faith-based organizations play a large
part” in Nebraska’s efforts “to find and retain safe,
loving, and supportive homes for [foster] children.” Id.
at 48.
South Carolina also depends on faith-based childplacing agencies. One of those groups is Miracle Hill
Ministries, which is South Carolina’s “largest provider of foster families for Level I foster children, recruiting 15% of the State’s foster families.” Letter
from Henry McMaster, Governor of South Carolina,
21
to Steven Wagner, Acting Assistant Secretary of U.S.
Admin. for Children and Families, at 2 (Feb. 27,
2018), bit.ly/3680L1w. While South Carolina’s partnership with Miracle Hill is vital for its foster children, the State’s ability to continue that relationship
is now threatened because of a pending federal lawsuit. Rogers v. U.S. Dep’t of Health and Hum. Servs.,
No. 6:19-cv-01567-TMC, Order (D.S.C. May 8, 2020)
(ECF No. 81) (refusing to dismiss an Establishment
Clause challenge to South Carolina’s partnership
with Miracle Hill).
As discussed above, Arkansas is another State
that considers faith-based groups “indispensable” to
its foster-care work. Hardy, supra. Again, just one of
those organizations—the CALL—is “the source of 40
percent of all foster homes in Arkansas.” Ibid. Alabama has also integrated many religious child-placing agencies into its foster-care program. “About 30
percent of the Alabama agencies that provide foster
and adoptive services . . . are faith-based organizations.” Anna Claire Vollers, Religious freedom or taxpayer-funded discrimination? Child welfare bill
prompts debate, Alabama.com (Feb. 8, 2017), bit.ly/
3bXGYmK.
Texas similarly partners with religious groups. It
has a program called Congregations Helping in Love
and Dedication (CHILD) that “encourages faith partners across Texas to join with [the State] to help provide current and potential . . . foster parents support,
training, and resources.” Letter from Ken Paxton, Attorney General of Texas, to Lynn Johnson, Assistant
22
Secretary of U.S. Admin. for Children and Families,
at 1 (Dec. 17, 2018), bit.ly/2LCnucC. And Texas’s One
Church One Child program connects state officials
and religious groups to find prospective parents
within minority communities. Ibid. As the Director of
Federal Funds and Client Services at the Texas Department of Family and Protective Services recently
declared, “Texas children and [state agencies] benefit
greatly from the services provided” by faith-based
child-placing organizations. Declaration of Tamela
Griffin, Texas v. Azar, No. 3:19-CV-00365, ¶ 12 (S.D.
Tex. Jan. 30, 2020) (ECF No. 15-1).
Some States like Texas and Alabama consider
these faith-based providers so essential to caring for
foster children that they recently enacted statutes to
ensure those organizations will not be forced to close
because of their beliefs. E.g., Ala. Code § 26-10D-5;
Kan. Stat. Ann. § 60-5322; Miss. Code. Ann. § 11-625(2); N.D. Cent. Code § 50-12-07.1; Okla. Stat. tit.
10A, § 1-8-112; S.D. Codified Laws § 26-6-41; Tex.
Hum. Res. Code Ann. § 45.004. This wave of legislation is a testament to the vital work that these religious organizations do.
II. Philadelphia’s ban on Catholic Social Services’ foster-care ministry must survive
strict scrutiny.
The Third Circuit held that strict scrutiny does not
apply to Catholic Social Services’ free-exercise claim.
According to that court, the city relies on “neutral,
generally applicable law,” and thus Employment Division v. Smith, 494 U.S. 872 (1990), bars that claim.
23
Pet. App. 12a. But Smith’s rule on neutral and generally applicable governmental action does not control
every free-exercise case. Trinity Lutheran Church of
Columbia, Inc. v. Comer, 137 S. Ct. 2012, 2021 n.2
(2017) (refuting the notion “that any application of a
valid and neutral law of general applicability is necessarily constitutional under the Free Exercise
Clause”). It surely has no place here, where Philadelphia has prevented (1) a religious organization (2) because of its beliefs (3) from carrying out its religious
mission to provide foster-care services (4) as faithbased groups have done throughout our nation’s history. Under these circumstances, strict scrutiny applies.
1. The First Amendment “gives special solicitude
to the rights of religious organizations.” HosannaTabor Evangelical Lutheran Church & Sch. v. EEOC,
565 U.S. 171, 189 (2012). It “radiates . . . a spirit of
freedom for religious organizations, an independence
from secular control or manipulation, in short, power
to decide for themselves, free from state interference,
matters of . . . faith and doctrine.” Kedroff v. St. Nicholas Cathedral of Russian Orthodox Church in N.
Am., 344 U.S. 94, 116 (1952).
This is not to suggest that the Free Exercise
Clause provides no protection for individual religious
adherents or non-religious entities operated by people
of faith for religious purposes. It does. See Masterpiece
Cakeshop, 138 S. Ct. at 1732 (protecting free-exercise
rights of an individual and his for-profit business).
But this Court has recognized extra safeguards for religious organizations. For instance, the religiousautonomy doctrine forbids courts from interfering
24
with decisions of “religious organizations” concerning
“internal discipline and government.” Serbian E. Orthodox Diocese for U. S. of Am. & Canada v. Milivojevich, 426 U.S. 696, 724–25 (1976). And the ministerial exception shields religious entities against discrimination claims brought by certain employees.
Hosanna-Tabor, 565 U.S. at 188–89. That Philadelphia interferes with the operations of a religious organization raises significant free-exercise concerns.
2. Additional constitutional concerns arise because of the reason that Philadelphia has shut down
Catholic Social Services’ foster-care ministry—
namely, its religious beliefs about marriage. Allowing
the city to exclude the organization because of its beliefs conflicts with the Free Exercise Clause’s promise
that governments may not impose “disabilities on the
basis of religious views.” Smith, 494 U.S. at 877.
There is no doubt that Catholic Social Services’
religious beliefs about marriage are the sole reason
for its exclusion. After more than a century of working
with Catholic Social Services, Philadelphia now imposes a new requirement that forces the group to provide home evaluations and make placements that violate its religious beliefs about marriage. If Catholic
Social Services held no religious beliefs—or different
beliefs—about marriage, it would have been able to
continue its foster-care work. Because the organization’s religious views are the sole basis for its exile,
stringent constitutional review is in order.
3. Philadelphia’s actions also cut to the heart of
Catholic Social Services’ religious exercise. It forces
the organization to end one of its ministries and
25
thwarts one of its core religious purposes. This infringes the “undoubtedly important . . . interest of religious groups” in “carry[ing] out their mission.”
Hosanna-Tabor, 565 U.S. at 196.
Catholic Social Services’ foster-care work is part
of its “religious ministry.” Pet. App. 254a. The group
partners with prospective foster parents, reviews
their lives and relationships in great detail, endorses
them and their living situations as suitable for foster
care, and supports them in caring for children. Id. at
257a. Catholic Social Services does this work, which
it supports with “prayer . . . several times daily,” id.
at 253a, and with millions of dollars annually in private donations, id. at 256a, because its faith requires
it to care for “orphans . . . in their affliction,” James
1:27 (English Standard).
Philadelphia now insists that Catholic Social Services must end this work unless it agrees to violate its
religious beliefs about marriage. But a religious group
“may not be compelled to choose between the exercise
of a First Amendment right and participation in an
otherwise available public program.” Thomas v. Review Bd. of Ind. Emp’t Sec. Div., 450 U.S. 707, 716
(1981). The First Amendment forbids the “coercion”
that this choice places “on the free exercise of religion”
just as surely as it bars “outright prohibitions” on religious exercise. Trinity Lutheran, 137 S. Ct. at 2022.
Smith’s rule about neutrality and general applicability, which applies to “government regulation of only
outward physical acts,” cannot save this intrusion
into “the faith and mission” of a religious organization. Hosanna-Tabor, 565 U.S. at 190 (emphasis
26
added). Philadelphia requires Catholic Social Services either to violate its “faith” (its beliefs about marriage) or to end one of its core “missions” (serving orphans through foster-care services). Smith does not
give the government that kind of power.
Because Catholic Social Services cannot perform
its foster-care services in violation of its faith, Philadelphia’s actions have the effect of banning the
group’s ministry. Pet. App. 256a (“[Y]ou would be
breaking the law if you tried to provide foster-care
services without a contract”). While this is similar to
the governmental exclusion of religious organizations
deemed “odious” in Trinity Lutheran, 137 S. Ct. at
2025, it is in some ways far worse. There, the religious
organization was forced to forfeit government subsidy
for a new playground surface. But here, Catholic Social Services is compelled to abandon its religious calling to serve foster kids. Since Philadelphia is “wielding the stick of prohibition” against a religious ministry—rather than “dangling the carrot of subsidy”—
stringent constitutional review applies. Christian Legal Soc’y v. Martinez, 561 U.S. 661, 683 (2010).
4. Philadelphia’s actions also run counter to the
weight of history. After all, it is excluding Catholic Social Services from charitable work that religious organizations have performed since time immemorial.
This Court often interprets the Religion Clauses
in light of history. For example, Hosanna-Tabor relied
on the history surrounding governmental interference with religious groups’ leadership choices. 565
U.S. at 182–85. And Marsh v. Chambers, 463 U.S.
783, 786–91 (1983), hinged on our nation’s “history
27
and tradition” of legislative prayer. Those sorts of historical accounts shed light on what the First Amendment protects and what it forbids.
As explained in Section I.A. above, faith-based organizations have been free to care for foster children
throughout our nation’s history. In the early years, religious organizations performed this work with practically no government involvement. Even after States
started subsidizing and contracting with private organizations, faith-based agencies remained free to operate according to their beliefs. Philadelphia’s decision to exclude Catholic Social Services conflicts with
these national historical practices.
In addition to departing from our national traditions, Philadelphia’s actions are contrary to its longstanding relationship with Catholic Social Services.
See Masterpiece Cakeshop, 138 S. Ct. at 1731 (one factor relevant to free-exercise analysis is “the historical
background of the decision under challenge”). For the
first few decades after Catholic Social Services
started its foster-care work in the 1910s, the organization made placements with little to no government
involvement. Pet. App. 254a–55a. And once Philadelphia began contracting with Catholic Social Services
in the middle of the 1900s, the group continued for
well over 50 years to serve foster families without any
requirement that it violate its faith. Ibid. Viewed in
light of this background, the city’s decision to shut
down a 100-year-old religious ministry must undergo
rigorous review.
“Perhaps the most telling indication of the severe
constitutional problem” with Philadelphia’s actions
“is the lack of historical precedent” for it. Free Enter.
28
Fund v. Pub. Co. Accounting Oversight Bd., 561 U.S.
477, 505 (2010) (quoting then-Judge Kavanaugh). It
was not until a little over a decade ago that a few local
governments began excluding faith-based organizations from foster-care work because of those groups’
religious beliefs about marriage. Such novel governmental action raises the specter of unconstitutionality
and demands strict scrutiny.
Locke v. Davey, 540 U.S. 712 (2004), demonstrates
the flip-side of this. The Court there rejected a freeexercise challenge to Washington State’s exclusion of
public scholarship funds for students pursuing degrees in devotional theology. Id. at 715. The Court
said that our nation has long opposed public funding
for church leaders, id. at 722–23, and thus the State’s
exclusion was not “constitutionally suspect,” id. at
725. But the opposite is true here. Philadelphia acted
against the backdrop of faith-based groups doing this
work for centuries. Excluding Catholic Social Services
departed from that history, and therefore Philadelphia’s actions, unlike the law in Locke, are highly irregular and constitutionally dubious. See Trinity Lutheran, 137 S. Ct. at 2023 (while the law in Locke was
consistent with historic “opposition” to funding for
“church leaders,” “nothing of the sort can be said
about a program . . . to resurface playgrounds”).
These historical considerations further confirm
that Smith poses no bar to Catholic Social Services’
free-exercise claim. Smith’s neutrality and generalapplicability rule is displaced when government acts
contrary to our nation’s history and traditions. Hosanna-Tabor, 565 U.S. at 190 (“The contention that
29
Smith forecloses recognition of” well-established historical practices “has no merit”). Because Philadelphia upended longstanding historical practices, strict
scrutiny applies.
* * * * *
Governmental action is suspect—and must undergo rigorous review—when it excludes a religious
organization, because of its beliefs, from carrying out
a charitable religious mission that faith-based organizations have been free to pursue throughout our nation’s history. Since that is what Philadelphia has
done, the city must satisfy strict scrutiny.
III. Philadelphia’s ban on Catholic Social Services’ foster-care ministry fails strict scrutiny.
Because strict scrutiny applies, Philadelphia must
show that excluding Catholic Social Services “advance[s] interests of the highest order” and that the
city’s actions are “narrowly tailored in pursuit of those
interests.” Church of the Lukumi Babalu Aye, Inc. v.
City of Hialeah, 508 U.S. 520, 546 (1993). Under its
Pennsylvania Religious Freedom Restoration Act
analysis, the Third Circuit assumed that strict scrutiny applied and said that the city satisfied it. Pet.
App. 47a. But regardless of whether this is correct under Pennsylvania state law, Philadelphia has not satisfied the demands of strict scrutiny for purposes of
federal constitutional analysis.
A. Philadelphia’s nondiscrimination interests do not satisfy strict scrutiny.
Philadelphia asserts an interest in eliminating
“discrimination in places of public accommodation.”
30
COA Br. at 43–44. But that characterization of the
relevant interest is too broad. Strict scrutiny “look[s]
beyond broadly formulated interests justifying the
general applicability of government mandates” to see
whether that standard “is satisfied through application of the challenged law” to “the particular” party.
Gonzales v. O Centro Espirita Beneficente Uniao do
Vegetal, 546 U.S. 418, 430–31 (2006); see, e.g., Wisconsin v. Yoder, 406 U.S. 205, 221–22 (1972) (assessing the government’s specific interest in forcing
Amish children to attend school from ages 14 to 16
rather than its general interest in mandating school
attendance). Even the Third Circuit admitted that
constitutional strict-scrutiny analysis “examine[s] not
the general interest behind the City’s anti-discrimination laws but the specific interest” in applying
those laws here. Pet. App. 47a n.13.
Accordingly, under this particularized analysis,
Philadelphia must demonstrate that it has a compelling interest in forcing a religious organization to either violate its beliefs about marriage or close its foster-care ministry. The city has not done so on this record.
1. Philadelphia has not shown that allowing Catholic Social Services to operate according to its beliefs
causes any tangible harm to the city’s foster-care services. Most notably, Catholic Social Services does not
prevent same-sex couples from becoming foster parents. Dozens of other child-placing agencies are willing and available to perform home evaluations for
those couples.
31
The only tangible harm to the city’s foster-care
program comes from excluding Catholic Social Services. Doing so, as discussed in Section I.B. above,
takes away critical foster-care resources, threatens to
reduce the number of available foster homes, and jeopardizes the interests of foster kids.
2. Because Philadelphia has not eliminated (but
in fact only created) tangible harm, the city must rest
its asserted interest on the intangible “dignitary” concern it raises. COA Br. at 44–45. Yet that interest is
not compelling under the facts of this case.
“‘[C]ontext matters’ in applying the compelling interest test.” Gonzales, 546 U.S. at 431 (quoting Grutter v. Bollinger, 539 U.S. 306, 327 (2003)). This Court
has recognized that “dignity” interests must give way
when a religious provider’s decision not to recognize a
same-sex marriage is “well understood in our constitutional order as an exercise of religion.” Masterpiece
Cakeshop, 138 S. Ct. at 1727. This explains why “a
member of the clergy who objects to gay marriage on
moral and religious grounds could not be compelled to
perform the ceremony,” ibid., and why Philadelphia
cannot force Catholic Social Services to choose between fidelity to its beliefs about marriage and its foster-care ministry.
Five contextual factors confirm the absence of a
compelling interest here. First, Catholic Social Services is a nonprofit religious organization that provides foster-care services as a ministry. Second, the
organization operates that ministry according to a
“decent and honorable” religious belief about marriage that is held “in good faith by reasonable and sincere people.” Obergefell v. Hodges, 135 S. Ct. 2584,
32
2594, 2602 (2015). Third, Catholic Social Services declines to recognize same-sex marriages when choosing
foster-parent partners for its foster-care ministry—
conduct central to its religious exercise. Fourth, the
organization provides other charitable services to
LGBT people. J.A. 171 (“[T]oday we are serving folks
from the LGBTQ community.”). Fifth, the organization’s views on marriage are well known, as the Third
Circuit acknowledged, Pet. App. 49a, so people would
not be surprised by its policies, as evidenced by the
absence of any same-sex couple ever applying to foster
through Catholic Social Services.
These factors collectively demonstrate that Catholic Social Services’ decision to operate its religious
ministry consistently with its beliefs is “well understood in our constitutional order as an exercise of religion,” and that decision is constitutionally protected
despite the government’s asserted “dignitary” concern. Masterpiece Cakeshop, 138 S. Ct. at 1727.
3. Nor has Philadelphia shown that its actions are
narrowly tailored. The city’s efforts to achieve its asserted interests are vastly underinclusive, which “is
alone enough to defeat” strict scrutiny. Brown v.
Entm’t Merchs. Ass’n, 564 U.S. 786, 802 (2011).
Most troubling is that Philadelphia’s asserted dignitary concerns are one-sided. For the city to brand
Catholic Social Services’ religious beliefs as discriminatory and compel the organization to close its fostercare ministry impugns the faith that it and its fellow
believers hold. See Burwell v. Hobby Lobby Stores,
Inc., 573 U.S. 682, 736 (2014) (Kennedy, J., concurring) (explaining that “free exercise is essential in preserving the[] . . . dignity” of religious adherents). That
33
Philadelphia ignores—and in fact inflicts—this similar dignitary harm proves that its actions are underinclusive.
The Third Circuit implied that the government
need never allow exceptions or accommodations to
nondiscrimination requirements because doing so unacceptably undermines its interests. Pet. App. 47a–
49a (“mandating compliance”—with “zero” exemptions—“is the least restrictive means”). But nondiscrimination laws frequently include exceptions and
coverage gaps. Title VII of the Civil Rights Act of
1964, for example, allows religious organizations to
discriminate in some hiring decisions. 42 U.S.C.
§ 2000e-1(a). And Title II applies only to some businesses, such as hotels, restaurants, and places of public entertainment. 42 U.S.C. § 2000a(b). But these and
similar gaps in coverage have not prevented nondiscrimination laws from furthering their purposes. Nor
would allowing Catholic Social Services to continue
operating its foster-care ministry according to its religious beliefs. See Gonzales, 546 U.S. at 435–36 (rejecting the government’s argument that “no exceptions” can be made).
4. The Third Circuit was also wrong to suggest
that the facts of this case are akin to “racial discrimination.” Pet. App. 47a (quoting Hobby Lobby, 573 U.S.
at 733). This Court recently recognized that “racial
bias” is sui generis—it “implicates unique historical,
constitutional, and institutional concerns.” Peña-Rodriguez v. Colorado, 137 S. Ct. 855, 868 (2017). And
more to the point, this Court has sharply distinguished between racist conduct concerning marriage,
34
which it labeled “odious” with roots in “White Supremacy,” Loving v. Virginia, 388 U.S. 1, 11 (1967),
and the religious belief that marriage is a union between a man and a woman, which the Court affirmed
as “decent and honorable,” Obergefell, 135 S. Ct. at
2602. In short, any attempt to draw parallels between
this case and racism misses the mark entirely. The
Court should not indulge it.
B. Philadelphia’s Establishment Clause interests do not satisfy strict scrutiny.
Philadelphia’s Brief in Opposition (at 26–27) references alleged “Establishment Clause concerns”
from ruling for Catholic Social Services. Those purported concerns are misplaced and should be rejected.
The Court should make clear that the Establishment
Clause poses no barrier to the vital partnerships that
exist between States and faith-based child-welfare organizations.
1. “[T]he Establishment Clause must be interpreted by reference to historical practices and understandings.” Town of Greece, N.Y. v. Galloway, 572
U.S. 565, 576 (2014) (cleaned up). As explained in Section I.A., faith-based organizations have always been
free to care for foster children. Throughout colonial
times and for a century after the founding, the government largely stayed out of foster care. When the
States began to get more involved in the late 1800s,
they did so mostly by funding private organizations—
including religious groups—that were already caring
for vulnerable children. It was not until many decades
later that the States assumed a more active role. But
even then, they continued to partner with faith-based
35
organizations to provide foster-care services. This history refutes any notion that the Establishment Clause
bars Catholic Social Services from continuing its foster-care services. See Marsh, 463 U.S. at 786 (Establishment Clause does not forbid a practice that “has
coexisted with the principles of disestablishment and
religious freedom” from “colonial times through the
founding of the Republic and ever since”).
Whether the Court looks at this broad national
history or the specific history of Catholic Social Services’ foster-care ministry in Philadelphia, the result
is the same. Catholic Social Services has been serving
foster children for over a century, and for at least the
last 50 years, it has been contracting with the State
to do that work. That “passage of time gives rise to a
strong presumption of constitutionality” under the
Establishment Clause. Am. Legion v. Am. Humanist
Ass’n, 139 S. Ct. 2067, 2085 (2019); see also Van Orden v. Perry, 545 U.S. 677, 702 (2005) (Breyer, J., concurring) (considering it “determinative” that “40 years
passed” during which a monument’s placement on
public land “went unchallenged”). Philadelphia cannot overcome this historical background in pressing
its Establishment Clause concerns.
2. Ignoring these historical considerations, the city
suggests that Establishment Clause concerns arise in
part because Catholic Social Services receives public
“money.” City BIO 26. But the Establishment Clause
does not forbid governments from operating neutral
government programs that fund both religious and
secular organizations. Indeed, when a program gives
funding “to the religious (including the pervasively
sectarian), the areligious, and the irreligious,” as
36
Philadelphia’s foster-care contracts do, “it is a mystery which view of religion the government has established, and thus a mystery what the constitutional violation would be.” Mitchell v. Helms, 530 U.S. 793,
827 (2000) (plurality op.).
Moreover, most of the money that the city gives to
Catholic Social Services flows to foster parents for the
children’s benefit. Whether that money passes
through a religious or secular foster-care agency ultimately depends on the “independent choices of private individuals”—namely, the foster parent’s choice
to partner with a specific child-placing agency. Zelman v. Simmons-Harris, 536 U.S. 639, 649 (2002). A
program with this kind of “true private choice” does
not violate the Establishment Clause, and it does not
matter that some of those privately directed government dollars go to a religious organization. Ibid.
Were the Establishment Clause construed to prohibit government funding for faith-based child-placing organizations, the fallout would be disastrous. As
discussed in Section I.B., many States rely on those
faith-based agencies because of their outstanding
work recruiting and retaining first-rate foster parents. Forbidding States from continuing their work
with those organizations would not only burden already strapped state and local agencies but also risk
harm to children by reducing the number of available
foster homes.
3. Philadelphia argues that Larkin v. Grendel’s
Den, Inc., 459 U.S. 116 (1982), prohibits the city from
“vest[ing] a core City function in a religious entity”
that operates according to its faith. City BIO 26–27.
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But Larkin is entirely unlike this case. There, Massachusetts allowed churches to veto nearby businesses’
applications for liquor licenses. While the “zoning
function” at issue there was “traditionally a governmental task,” Larkin, 459 U.S. at 121, foster care has
historically been the work of private charitable
groups (not the government). More importantly, Massachusetts gave churches the “unilateral and absolute
power” to decide whether an applicant will receive a
liquor license, id. at 127, whereas Catholic Social Services has no authority to prevent anyone from becoming foster parents because dozens of other child-placing agencies are available. Larkin thus fails to support Philadelphia’s position.
Pressing a different theory, the intervenors argued below that allowing Catholic Social Services to
continue its foster-care services is an impermissible
religious accommodation because it “impose[s] substantial burdens on third parties.” COA Br. 43–44
(discussing Estate of Thornton v. Caldor, Inc., 472
U.S. 703, 708–09 (1985)). Not so. Catholic Social Services does not burden anyone’s rights. Regardless of
what that organization does, prospective foster parents may pursue a license through any secular
agency. Nor do foster children face any harm from
Catholic Social Services’ continuing its foster work.
On the contrary, it is the city’s decision to exclude
faith-based child-placing organizations like Catholic
Social Services—which excel at recruiting and sustaining foster parents—that poses a detriment to
kids. Moreover, the intervenors’ third-party-burden
argument fails as a matter of law. Because Catholic
Social Services’ free-exercise claim already satisfies
strict scrutiny, that analysis adequately accounts for,
38
and ensures an absence of any great burden on, the
interests of others. Hobby Lobby, 573 U.S. at 729 n.37;
Cutter v. Wilkinson, 544 U.S. 709, 720–23 (2005). Respondents’ Establishment Clause arguments simply
do not justify Philadelphia’s exclusion of Catholic Social Services.
CONCLUSION
The judgment of the Third Circuit should be reversed.
Respectfully submitted,
DOUGLAS J. PETERSON
Attorney General of Nebraska
DAVID T. BYDALEK
Chief Deputy Attorney General
JAMES A. CAMPBELL
Solicitor General
Counsel of Record
OFFICE OF THE NEBRASKA
ATTORNEY GENERAL
2115 State Capitol
Lincoln, NE 68509
(402) 471-2682
jim.campbell@nebraska.gov
Counsel for Amici Curiae
[Additional counsel listed on the following page]
JUNE 2020
39
ADDITIONAL COUNSEL
MARK BRNOVICH
Attorney General
State of Arizona
DAVE YOST
Attorney General
State of Ohio
This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.