In March 2018, a Philadelphia Inquirer reporter alerted the City’s Department of Human Services (“Department”) that two of the foster care agencies with which it contracts – including Catholic Social Services (“CSS”) – refused to work with same-sex foster parents. The Department promptly conducted an investigation and, upon confirming that CSS refused to work with same-sex foster parents in violation of the City’s anti-discrimination laws, stopped referring foster children to CSS. CSS then sued under the free exercise, free speech, and establishment clauses of the U.S. Constitution’s First Amendment, seeking an order requiring the City to renew its annual contract. The United States District Court for the Eastern District of Pennsylvania denied the requested temporary restraining order and preliminary injunction, and in a case titled Fulton v. City of Philadelphia (“Fulton”), the Third Circuit affirmed.
Relying on 30-year precedent set forth in Employment Division, Department of Human Resources of Oregon v. Smith (“Smith”), the Third Circuit held in Fulton that the City did not treat CSS differently because of its religious beliefs. Rather, the City acted to enforce a facially neutral and generally applicable non-discrimination policy which, under Smith, it is permitted to do. And while certain comments may be found to suggest hostility toward religion and thereby belie arguments pertaining to neutrality and general applicability, the Third Circuit also cautioned that “[i]f all comment on religiously motivated conduct by those enforcing neutral, generally applicable laws against discrimination is construed as ill will against the religious belief itself, then Smith is a dead letter, and the nation’s civil rights laws might be as well.” (Emphasis added.) The Third Circuit’s fear may soon become reality.
CSS sought review of the Third Circuit’s decision, and the United States Supreme Court granted certiorari on January 24, 2020 and heard oral argument on November 4, 2020. The Supreme Court’s ruling in Fulton could spell the end of Smith.
During oral argument, newly-appointed Justice Amy Coney Barrett pointed out that CSS urged in its briefing that Smith should be overruled. In response, CSS argued that Smith “has caused negative results” and “is a bad fit” in the context of the Court’s free exercise jurisprudence. CSS urged that the rational basis standard set forth in Smith be replaced with a strict scrutiny standard. So what would be the practical effect of CSS prevailing?
Simply put, it could herald a new free exercise jurisprudence era. Under Smith, if a facially neutral and generally applicable public employer rule or policy incidentally burdens an employee’s free exercise of his or her religion, the rule or policy survives a legal challenge under the First Amendment’s free exercise clause if it is rationally related (i.e., has a logical connection) to a legitimate purpose. However if, as CSS urges, the Court adopts a strict scrutiny test, the same rule or policy would survive a legal challenge if, and only if, it is the least restrictive means to accomplish a compelling interest – a much higher standard. Public employers may then need to evaluate their policies to determine whether they need to be revised to reflect the least restrictive means to accomplish a compelling interest.
The Supreme Court has not yet ruled on Fulton. In its opinion, the Court may choose to affirm Smith or may determine that Smith is inapplicable to the facts before it and, on that basis, not address it at all. (It should be noted, however, that the Fair Employment and Housing Act (“FEHA”) and Title VII of the Civil Rights Act of 1964 (“Title VII”) both prohibit religious discrimination, and the analysis of FEHA and Title VII discrimination claims is different from the free exercise claims at issue in Fulton and Smith.)
This article was originally published on LCW’s California Public Agency Labor & Employment Blog. You can read other articles and explore our blog by visiting calpublicagencylaboremploymentblog.com.
