The Court Should Reject Religious Supremacy in Philadelphia but it Won't

 By Eric Segall

The election is today (and perhaps goes on longer), but also tomorrow the Court will hear arguments in a major church/state case that could have far-reaching implications for our country. 

A major American city, Philadelphia, decided to give out grants to public interest organizations to help place foster children in permanent homes. The city does not allow any group that wants to participate but rather insists in the contract, which no one is required to sign unless they want the city's grant money, that the grantee will not discriminate on the basis of several factors, including sexual orientation. 

A church-affiliated organization, Catholic Social Services ("CSS"), took the grant money but refused to agree to the non-discrimination pledge because it feels children should only be placed with married  parents, and CSS does not consider legally married gay couples-well married. . The City then terminated the contract, and the religious group says that termination is unlawful discrimination against religion. CSS wants a court order requiring Philadelphia to give the group grant money despite its refusal to agree not to discriminate against gay parents. Two lower courts correctly ruled for Philadelphia, and the case will be argued tomorrow in the Supreme Court (by telephone). The decision is foreordained as the Justices will almost certainly, and wrongly, rule against the City. 

This is absolute madness, and the decision will inevitably reflect this Court's wholly made up version of religious supremacy and consistent and obstinate interference with the decisions of state and local officials without any persuasive basis in constitutional text or history.

This case is not about a government's regulation of religious exercise or conduct. This case is not about a generally applicable rule penalizing conduct but which also incidentally burdens religious exercise. This case is about whether the government, when giving out its money in the form of grants, and when conditioning the grant on criteria imposed for wholly secular and important reasons, must waive those conditions for religious organizations and religious organizations only. As the City puts it in its brief, "whatever CSS’s rights when regulated by the government, it is not entitled to perform services for the government however it sees fit." 

And, the case, quite literally, implicates good and evil.

Let's start with the good and evil part. Were CSS not a religious organization but a secular one that for reasons of pure bigotry and/or hatred took the position that gay couples should not be allowed to be foster parents, most Americans  (including judges) would easily conclude such a group could be excluded from the city's program. If a white supremacist group wanted to participate in the program, and agreed to all the terms of the program, except the non-discrimination pledge, and it objected on non-religious grounds, would anyone think the City had to give the group money to help place foster kids only with white parents? The answer is obviously no for many reasons, not the least of which is that the discrimination is wrong, and the City is allowed to steer clear of it (not to mention the waste of money incurred by giving the grant to a group not acting in the best interests of the city). That wrongness is not diminished when the justification for the discrimination is based on faith. Discrimination grounded in religious  faith is still discrimination, and the religious component of the hate does not turn the hate into something less hateful, as I wrote several years ago here.

There are technically three legal issues in the case. They are the following:

I. Whether the Free Exercise Clause bars Philadelphia from including in all of its contracts with foster family care agencies a provision that requires these agencies to refrain from discrimination, even if based on faith, when performing government services and exercising delegated government power. 

II. Whether the City “compels” speech by requiring foster family care agencies to promise not to discriminate against certain groups when carrying out their contractual responsibilities. 

III. Whether Employment Division, Department of Human Resources of Oregon v. Smith, 494 U.S. 872 (1990), should be overruled. 

For the first two questions, we do not need overly complicated legal doctrines to get to the right and obvious answers. The First Amendment provides that the government "shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech." There is no textual or originalist basis for prohibiting Philadelphia from saying, if you want our money, you must agree to abide by our rules regarding non-discrimination. This is not a case where the government is conditioning a grant on an unconstitutional condition such as saying to a grantee you can have the money but only if you agree to forgo conducting private worship services or refrain from an unrelated religious exercise. The secular, non-discrimination requirement in the foster care contracts was not created to discriminate against religion, says nothing about religion, and is a perfectly legitimate precondition for receiving taxpayer money. The idea that the Free Exercise Clause requires cities and states to cater to the discriminatory policies of its religious grantees is perverse. If a grantee does not want to make the promise not to discriminate, it can refuse the money.

The second issue is even more crazy. This case has nothing to do with compelled speech in any way, shape, or form. Obviously, there are free speech limits on what conditions governments can put in their contracts. Philadelphia would not be allowed to put a condition in its contracts that grantees must speak out in favor of the mayor or embrace certain political or religious ideas. But none of that is this case. CSS doesn't have to say anything other than sign a contract promising to consider all qualified foster parents without regard to sexual orientation. This case is not about speech at all.

The third issue is the most important, but should not even be resolved in this case. The Smith case, written by Justice Scalia, famously held that the government is not constitutionally required to exempt religious objectors from generally applicable laws not passed with the intent to harm or discriminate religion. There is no plausible argument that Philadelphia insists on non-discrimination to intentionally harm religion.

The law before Smith, that the Free Exercise Clause requires the government to put forward a compelling interest if generally applicable laws substantially burden religious exercise, constituted an aggressive exercise of judicial review that began in 1963 and ended with Smith in 1990. There is no reason to revisit Smith given that states and the federal government, if they so please, are quite capable of, and in fact have, enacted religious freedom restoration acts that legislatively require a return to the pre-Smith rule. The Justices should not impose this pro-religious supremacy rule on city, state, and federal governments as a constitutional mandate.

Moreover, this is the wrong case to re-examine Smith. First, as Philadelphia argues in its brief, most pre-Smith cases involved government regulations and prohibitions of conduct, not government grants. Second, fighting discrimination is a compelling government interest that should satisfy the old pre-Smith test anyway. Finally, just as a matter of stare decisis, Smith has not proven unworkable in any way. In fact, a return to the pre-Smith regime would inject the federal courts into hundreds, maybe thousands, of cases where judges would have to balance the state's secular interests in governing against the varied customs, beliefs, and actions of different religious sects. The difficulty of that task was a major reason for Smith in the first place, and there is no reason to return to that hard-to-implement and overly subjective constitutional rule.

Aside from the legal standards that should govern this case, it would just be wrong for the Court to require Philadelphia to countenance overt discrimination against gays and lesbians by requiring the city to give its money to an organization, religious or not, that thinks gay parents aren't suitable to adopt children. That view is pernicious, and whether or not it is based on faith, pure prejudice, or a sincere belief that gays and lesbians shouldn't be parents, Philadelphia should not be forced to further that prejudice through taxpayer dollars.

And, yet the Court will find a way to rule for CSS in this case and continue in its trend of imposing religious supremacy, not religious neutrality, on cities, states, the federal government, and the American people. That is very sad.