Employing Smith to Prevent a Constitutional Right to Discriminate Based on Faith: Why the Supreme Court Should Affirm the Third Circuit in Fulton v. City of Philadelphia

Authors

Margaret Smiley Chavez

Abstract

In the interest of the children in the Philadelphia foster care system, the City of Philadelphia prohibits its contracting foster care agencies from discriminating against prospective foster care parents on account of race, religion, and sexual orientation, among other things. Despite this requirement, in 2018, two foster care agencies—Catholic Social Services (CSS) and Bethany Christian Services— that have annual contracts with Philadelphia refused to certify same-sex couples as foster parents for religious reasons. While Bethany Christian Services reached an agreement with the city, CSS did not. As a result, the city froze foster care placement referrals to CSS and did not renew its contract with CSS for the following year.

In response, several foster parents and CSS sued Philadelphia to challenge the city’s freeze on First Amendment religious freedom grounds. This past November, the Supreme Court of the United States heard oral arguments for Fulton v. City of Philadelphia, spanning three separate but related issues: (1) whether free exercise plaintiffs must prove a particular type of discrimination claim to prevail; (2) whether the Court should revisit its leading precedent on Free Exercise Clause claims, Employment Division v. Smith; and (3) whether Philadelphia violated the First Amendment by requiring a religious foster care agency to take actions that contradict its religious beliefs to participate in the taxpayer-funded foster care system.

This Comment argues that all courts should first apply the neutral-andgenerally-applicable standard established in Smith when evaluating Free Exercise Clause claims. Applying that standard to Fulton, the Supreme Court should find that Philadelphia’s Services Contract and Fair Practices Ordinance are operationally neutral and generally applicable. Therefore, they are only subject to rational basis review. Moreover, this Comment argues that there is not a circuit split amongst the circuit courts on how to apply Smith, and, thus, there is no need for the Supreme Court to revisit Smith, for any purpose other than clarifying which exceptions, if any, exist. Lastly, Philadelphia’s conditioning of government funds on actions contrary to CSS’s religious beliefs does not constitute a First Amendment violation.