Last Wednesday, the Supreme Court heard oral arguments over whether the City of Philadelphia can require Catholic foster-care agencies to consider placing children with same-sex couples. The case has the potential to set a precedent with long-lasting implications in Philadelphia and beyond on how state and local governments interact with contractors that have strong religious beliefs.

The Inquirer tapped legal scholars to debate: Should the law allow for religious exemptions?


No: Case-by-case review of religious beliefs vs. government interests can never work.

By Howard Gillman and Erwin Chemerinsky

The ability of people to exercise the religion of their choice without fear of government oppression or discrimination is a fundamental principle of our constitutional system. But when the government passes general laws that promote the public interest and are not motivated by animus against unfavored religions, should people have a right to disregard the law because they claim the law is inconsistent with their religious beliefs?

Of course not. In a religiously diverse society, every person with a religious belief can find some laws and social duties with which to disagree. If the government was required to exempt each religious objector from the need to obey all disagreeable laws, the result would be chaos — every believer being a law unto themselves, and with the government being forced to make impossible decisions about which favored religions should be granted a special status and which religious beliefs should be considered not important enough to accommodate.

Just consider the turmoil. In the 1960s, many people believed that their bible justified segregation of the races. Should the government be required to exempt such religious business owners from having to obey the Civil Rights Act of 1964? Should a clerk who oversees a jury pool have a right to refuse to register women as jurors if he believes that God expects women to stay at home?

Once we appreciate the multiplicity of religious views, we understand that this kind of case-by-case review of religious beliefs vs. government interests can never work. This is why the late Justice Antonin Scalia wrote the majority opinion in the case Employment Division v. Smith in 1990, reinforcing the overwhelming position of American courts throughout our history that the Constitution does not require the government to exempt religious objectors from the obligation to obey general and neutral laws.

Justice Antonin Scalia wrote the majority opinion in the case Employment Division v. Smith in 1990.
GAVIN AVERILL / Hattiesburg (Miss.) American
Justice Antonin Scalia wrote the majority opinion in the case Employment Division v. Smith in 1990.

Still, today, there are organizations that represent politically well-connected conservative religious interests that seek to overturn the Supreme Court’s decision in Employment Division. They believe that a cluster of conservative Supreme Court appointments creates a real opportunity to establish a constitutional right for religious conservatives to disregard laws they don’t like. In particular, they want courts to say that religious business owners do not have to abide by laws prohibiting discrimination against same-sex couples, or that require employers to provide health insurance that includes contraceptive coverage for women.

We saw some of these arguments at work in last week’s oral arguments in the case of Fulton v. City of Philadelphia. The City of Philadelphia contracts with private social service agencies to help place children in foster homes. Every contract is explicit in prohibiting the agency from discriminating on the basis of race, sex, religion, and sexual orientation. Catholic Social Services says that its religious beliefs prevent it from providing inspections or placing children with same-sex couples and Philadelphia’s requirements violate the First Amendment.

This is wrong because the city, which has the responsibility of caring for foster children, should be able to insist that its contractors not engage in illegal discrimination. The most telling moment at oral argument came when Justices Stephen Breyer and Elena Kagan asked whether the city could refuse to contract with an entity with religious beliefs against interracial marriage. The response was that racial discrimination is different.

But it is not. Discrimination based on race, sex, religion, and sexual orientation is wrong, and no one should be able to use their religion as a basis for harming others in this way. The court in Fulton should reaffirm Employment Division v. Smith and declare that the First Amendment does not give favored religious practitioners the right to ignore civil rights laws.

Howard Gillman is the chancellor of the University of California, Irvine. Erwin Chemerinsky is the dean of the University of California, Berkeley School of Law. They are coauthors of “The Religion Clauses: The Case for Separating Church and State” (2020).

Continue the debate

Stephanie Barclay, Erwin Chemerinsky, and Howard Gillman will join the National Constitution Center to debate what the Constitution says about the relationship between church and state on Nov. 19 at 7 p.m. ET. 

Visit constitutioncenter.org/debate to learn more

Yes: Allowing religious exemptions restores the American promise of freedom.

By Stephanie Hall Barclay

Carol Logan wept as she watched government bulldozers destroy an ancient Native American burial ground held sacred by her tribe. The government moved forward with this demolition in order to widen a highway. But it could have easily widened on the other side of the road or built a retaining wall, as it had done just down the road to protect wetlands and even a tattoo parlor. While the soil where her ancestors had rested ripped apart like an open wound, Carol grieved the needlessness of this conflict.

The connection between Carol’s story and the Supreme Court case Fulton v. City of Philadelphia may not be immediately apparent. But both cases deal with the question of whether or not our law should protect religious exercise through exemptions. At bottom, a rule favoring religious exemptions is based on a fairly straightforward principle: Where possible, the government should try to avoid imposing needless burdens on religion. That means sometimes the government will have reasons that justify its burdens on religion. But absent such a justification, the government should work to accomplish its goals in ways that don’t harm religious people.

This latter scenario is applicable to Fulton. In this case, Catholic Social Services (CSS) has been providing foster care in the city of Philadelphia for over 200 years. With the help of foster parents like Sharonell Fulton and Toni Simms-Busch, CSS offers unparalleled care to abused and neglected children, more than 70% of whom are racial minorities. And CSS serves all children in need, regardless of race, sex, or sexual orientation.

Sharonell Fulton has fostered over 40 children. She plants a tree or rose bush in her front yard with her foster children as a symbol of their growth.
SHARONELL FULTON
Sharonell Fulton has fostered over 40 children. She plants a tree or rose bush in her front yard with her foster children as a symbol of their growth.

But two years ago, the city sought to close CSS down. The city’s reasoning had nothing to do with the quality of services. The city describes CSS as a “point of light” among Philadelphia’s foster agencies. Nor did it have anything to do with a lack of need. The city has repeatedly recognized the severe shortage of foster families to care for hundreds of children just waiting in group homes. Rather, the city sought to close CSS because it follows Catholic teaching on marriage and is unable to certify unmarried or same-sex couples for foster placement. CSS would refer such couples to one of 29 other agencies in Philadelphia who could work with these couples. Given that no same-sex couple had actually requested foster-care certification from CSS, this live-and-let-live system seemed to be working pretty well. But the city decided to close CSS’s program anyway. When this happened, Fulton explained, “as a single mom and woman of color, I’ve known a thing or two about discrimination over the years. But I have never known vindictive religious discrimination like this.”

This is an unnecessary fight. Indeed, multiple Supreme Court justices recognized as much in oral argument this month. Justice Stephen Breyer said that it was “bothering me a lot” that “no family has ever been turned down by this agency — indeed has never applied,” but city officials still tried to shut Catholic Social Services down. Justice Sonia Sotomayor asked the city officials to “suggest” a “compromise in this case” that could have avoided this conflict. Justice Brett Kavanaugh worried that instead of looking for a sensible solution, the city took an “absolutist and extreme” position, “creat[ing] this clash” even though — again — “no same-sex couple has ever come to Catholic Social Services” or been denied by them.

Part of the problem is that current free-exercise law under a case called Employment Division v. Smith allows government officials to burden religious exercise without providing any meaningful justification for their rule. Instead, as a constitutional matter, government bureaucrats can manufacture needless conflicts and refuse to do things like let Jewish police officers wear ceremonial head coverings, Sikhs in the military grow a beard, or Native American prisoners access a sweat lodge. Religious minorities and those with unpopular views are the ones who stand to lose the most under this rule.

America is a large and diverse nation. It should come as no surprise that Americans disagree about important issues like religious beliefs. The Supreme Court has recently expressed concern about “preserving the promise of the free exercise of religion enshrined in our Constitution,” a guarantee that “lies at the heart of our pluralistic society.” Embracing a rule that allows for religious exemptions will restore that promise. The alternative will continue a rule that leads to needless suffering for Carol, Sharonell, and thousands of at-risk foster children in Philadelphia.

Stephanie Hall Barclay is an associate professor of law at the Notre Dame Law School, where she also leads the Law School’s Religious Liberty Initiative. Professor Barclay was also involved in litigating this case in lower court proceedings.


Read more Inquirer Pro/Cons: