“In some cases, zoning and land use restrictions are choking them out; in other cases, cities are going after religious institutions because their religious beliefs do not jive with public policy positions…”
Chicago—-November 11, 2020—Thousands of homeless shelters, adoption agencies, schools, hospitals, and food pantries across the country would not exist were it not for the faith communities that founded them and keep them going. Their religious beliefs compel them to serve those in need – and millions depend on them – yet many local governments are making it harder for these institutions to provide social services in their communities, according to Noel Sterett, a partner in religious land use and business law firm Dalton & Tomich, PLC.
“In some cases, zoning and land use restrictions are choking them out. In other cases, cities are going after religious institutions because their religious beliefs do not jive with public policy positions,” Sterett said. “That’s the case in Fulton v. City of Philadelphia before the Supreme Court now. Regardless of the strategy to stop them, too many religious groups are forced to fight in court for their right to serve in accordance with their religious convictions.”
Sharonell Fulton (Fulton v. City of Philadelphia) is a Catholic with a huge heart for children. Over the years, she has personally partnered with Catholic Social Services (CSS) in Philadelphia to provide foster care for 40 children. The Church itself has provided foster care services in Philadelphia for more than 200 years, and thousands of children have found homes as a result of their charitable services. But now, the City is seeking to shut down CCS’ foster care program by taking their license to operate in the City, solely because the Church, in accordance with its long-held beliefs, won’t endorse same-sex or unmarried couples for foster placements. Because there are 29 other foster agencies in the City that work with same-sex and unmarried couples, none have tried to foster through CSS.
“This is where the city comes in, on trend, threatening the viability of religious-based social service agencies as a whole by attempting to force CSS into the coercive choice of endorsing same-sex marriage or losing its ability to provide foster care services,” Sterett said. “The City has the authority to make an exception for CSS and its religious beliefs, but it refuses to make an accommodation – even if it means hundreds of kids will suffer as a result.”
The question before the Supreme Court is: Does the government violate the First Amendment by conditioning a religious agency’s ability to participate in the foster care system on taking actions and making statements that directly contradict the agency’s religious beliefs? How the Supreme Court answers this question will have tremendous implications beyond the foster care system.
During oral arguments the week of November 2, Justice Amy Coney Barrett highlighted where the City’s argument could lead when she asked the City’s attorney whether the government could expand its authority over healthcare and force Catholic hospitals to provide abortions as a condition on their ability to continue providing healthcare services. The City’s attorney had no real answer.
“While many expect the City will lose this case based on the evidence of the City’s unlawful hostility and intolerance towards CSS’ religious beliefs, it is hard to say whether the Court will go beyond the facts of the case to issue a broader ruling,” Sterett said.
CSS has asked the Court to revisit its First Amendment jurisprudence and overrule the much-criticized 1990 case of Employment Division v. Smith. Under Smith, a neutral law of general applicability which burdens religious exercise need not be justified by a compelling governmental interest.
“While CSS can win its case by showing that the City restriction is not neutral or generally applicable, CSS has argued that Smith did not rightly interpret the First Amendment and substantially weakened the religious liberty protections the Founders had sought to provide,” Sterett said.
In the wake of Smith, religious groups and civil rights organizations were so concerned about its negative effects that they ultimately convinced Congress to enact two federal religious freedom statutes: the Religious Freedom Restoration Act (RFRA) in 1993 and the Religious Land Use and Institutionalized Persons Act (RLUIPA) in 2000. These statutes provide broader protections than are currently available under the First Amendment (or how it was interpreted in Smith). But RFRA only protects people against the Federal Government and RLUIPA only applies in the context of land use and institutionalized persons.
So, what will the Court do in Fulton? Will it overrule Smith or find some other way to restore heightened protections for religious liberty under the Free Exercise Clause of the First Amendment? Can it find a workable balance between LGBTQ rights and religious freedom? Will the Court rule narrowly for Ms. Fulton on the specific facts of her case? Or will it find that the government can condition a religious institution’s ability to participate in social services on taking actions that directly contradict its religious beliefs?
“The stakes for religious liberty and the millions who are served by religious institutions in America could not be higher,” Sterett said. “If the Supreme Court finds in favor of Fulton, faith-based organizations may find renewed hope and strength in their First Amendment right to serve those in need.”
About Dalton + Tomich
Dalton & Tomich’s attorneys have experience working with private schools, for profit and not-for-profit corporations, and entrepreneurs. They regularly assist clients with contract and corporate issues. They have also helped religious schools and assemblies across the country obtain land use and zoning approval both in and out of court, ensuring that their client’s rights under RLUIPA are protected. Learn more about their services at https://www.daltontomich.com/.