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Guest Commentary / Jun. 25, 2021

A Timid and Temporary Defense of the Free Exercise of Religion

Catholic institutions started taking care of orphans in Philadelphia more than 200 years ago — long before the local government got involved.

By Terence P. Jeffrey

“This decision might as well be written on the dissolving paper sold in magic shops.”

So wrote Justice Samuel Alito in the concurring opinion he filed last week in a case that pitted the City of Philadelphia against Catholic Social Services (CSS).

The court voted 9-0 in favor of CSS. But the arguments presented were far from unanimous.

Chief Justice John Roberts wrote a weak opinion based on a technicality — and was joined by Justices Stephen Breyer, Sonia Sotomayor, Elena Kagan, Brett Kavanaugh and Amy Coney Barrett. Justice Alito wrote a forceful counterargument based on the Constitution itself — and was joined by Justices Clarence Thomas and Neil Gorsuch. (Barrett, joined by Kavanaugh and partly by Breyer, and Gorsuch, joined by Thomas and Alito, also filed concurring opinions.)

The question was: Can Philadelphia force CSS to either hand over foster children to same-sex couples or give up placing foster children altogether?

Notably, as Alito observed, Catholic institutions started taking care of orphans in Philadelphia more than 200 years ago — long before the local government got involved.

“One of the first orphanages in Philadelphia was founded by a Catholic priest in 1798,” Alito wrote.

St. Elizabeth Ann Seton and the sisters who joined her religious order, the U.S. Conference of Catholic Bishops noted in their own brief to the court, began taking care of orphans in Philadelphia 16 years after that.

“In 1814, Mother Seton dispatched sisters from their motherhouse in Emmitsburg, Maryland, to Philadelphia, where they established St. Joseph’s Asylum, one of the first Catholic orphanages in the United States,” the bishops said.

“During the latter part of the 19th century and continuing into the 20th century, the care of children was shifted from orphanages to foster families,” Alito explained, “but for many years, state and local government participation in this field was quite limited.”

Yet, as government grew in the United States, so did its involvement in foster care.

“In later years,” wrote Alito, “an influx of federal money spurred States and local governments to take a more active role, and today many governments administer what is essentially a licensing system. As is typical in other jurisdictions, no private charitable group may recruit, vet, or support foster parents in Philadelphia without the City’s approval.”

Three years ago, Philadelphia decided the CSS would no longer be allowed to place foster children.

Why? Because — in keeping with Catholic teaching — it would not place foster children in the care of same-sex couples.

The First Amendment, imposed on states through the Fourteenth Amendment, says: “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof.”

As this column has noted before, the Catholic Church teaches that homosexual behavior is wrong. “Basing itself on Sacred Scripture, which presents homosexual acts as acts of grave depravity, tradition has always declared that ‘homosexual acts are intrinsically disordered,” says the Catholic Catechism.

“They are contrary to the natural law,” the Catechism says. “Under no circumstances can they be approved.”

From 1798 to 2018, Catholic institutions in Philadelphia were allowed to take care of orphans in a way that did not conflict with these principles of their faith.

Then Philadelphia’s decision to deny CSS the ability to continue placing foster children because it would not place them with same-sex couples clearly abridged CSS’s First Amendment right to the free exercise of religion.

However, Chief Justice Roberts, in his opinion joined by Breyer, Sotomayor, Kagan, Kavanaugh and Barrett, decided that what Philadelphia did was wrong because it did not make this move on the basis of a “generally applicable” rule.

In the 1990 case of Employment Division v. Smith, the Supreme Court ruled — in an opinion written by Justice Antonin Scalia — that Oregon did not violate the free exercise of religion when it withheld unemployment benefits from individuals fired from their jobs for using peyote in a Native American religious ritual.

“Smith held that laws incidentally burdening religion are ordinarily not subject to strict scrutiny under the Free Exercise Clause so long as they are neutral and generally applicable,” Roberts wrote.

But Philadelphia’s “standard foster-care contract,” which included a rule requiring contractors not to discriminate on the basis of “sexual orientation,” also allowed exceptions to this rule — at the “sole discretion” of the city’s Department of Human Services commissioner or someone designated by that commissioner.

“Provider shall not reject a child or family including, but not limited to … prospective foster or adoptive parents, for Services based upon … their … sexual orientation … unless an exception is granted by the Commissioner or the Commissioner’s designee, in his/her sole discretion,” says this provision.

This power to make exceptions, Roberts decided, was what thwarted Philadelphia’s case: It was inconsistent with the language of Employment Division vs. Smith, not the language of the First Amendment.

“The City initially argued that CSS’s practice violated section 3.21 of its standard foster care contract,” he wrote. “We conclude, however, that this provision is not generally applicable as required by Smith.”

Alito argued instead that Smith should be overturned and the First Amendment fully restored — otherwise all Philadelphia needed to do to reverse the court’s decision was to remove the exceptions clause from its contracts.

“One of the questions that we accepted for review is 'whether Employment Division v. Smith should be revisited,’” wrote Alito. “We should confront that question.”

“The City has been adamant about pressuring CSS to give in, and if the City wants to get around today’s decision it can simply eliminate the never-used exemption power,” Alito concluded. “If it does that, then, voila, today’s decision will vanish — and the parties will be back where they started.”

Philadelphia, in other words, may once again infringe on the free exercise of religion.

Terence P. Jeffrey is the editor in chief of CNSnews.com.

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