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Same-sex adoption, religious freedom and the Supreme Court

| Friday, September 11, 2020

Kerry Schneeman | The Observer

In November, the United States Supreme Court will hear oral arguments in ​Fulton v. City of Philadelphia​, a case concerning a litany of controversial social issues: adoption by same-sex parents, religious discrimination and the role of private religious institutions in public life. The case also provides the Court an opportunity to overturn ​Employment Division v. Smith​, one of its most contested decisions of the recent decades.

The legal briefs in the case lay out the facts nicely and can be found at SCOTUSblog​. The city of Philadelphia, in its efforts to place foster children with families for adoption, contracts with private “foster family care agencies” that locate and evaluate parents looking to adopt. So, if I were looking to adopt a foster child, I wouldn’t go directly to the Philadelphia Department of Human Services (DHS) — I would go to a private foster agency. One such agency, which has been caring for children in need for over 200 years, is Catholic Social Services of the Archdiocese of Philadelphia (CSS). In 2018, DHS learned CSS had a policy of not evaluating same-sex couples looking to adopt; instead, CSS would refer those couples to another adoption agency in the city. DHS decided to stop placing children with families working with CSS that year and, in the following years, included an updated non-discrimination clause in their contract that prohibited CSS’ policy of declining to work with same-sex couples. The legal issue in question, to somewhat over-simplify, is whether DHS discriminated against CSS on the basis of its religious practice, in violation of the First Amendment’s guarantee of free exercise of religion.

This question brings into play ​Employment Division v. Smith​, a 1991 decision in which the Court decided that any law that is generally applicable and facially neutral should not be granted case-by-case exceptions by federal courts so long as the law is rationally related to a legitimate government interest. For example, the facts of that case involved the loss of unemployment benefits due to the use of peyote in a Native American religious ceremony.

Because the state’s ban on the use of peyote (unless prescribed) did not say anything specific about Native American religious ceremonies, and it applied to everyone, the religious objectors in that case were not granted a religious exception to the rule, which was deemed “rationally related” to the government interest of drug enforcement. In response to this decision, which has been decried ​by religious communities ever since, Congress (near unanimously) enacted the Religious Freedom Restoration Act​ (RFRA). RFRA practically restored religious freedom litigation to its pre-Smith state, where all violations of religious freedom needed to pass a stricter standard. However, ​in a 1997 decision​, the Supreme Court ruled the RFRA could not be applied to the states. Since that decision, the state governments have more power than the federal government in their ability to enact laws that incidentally impair religious practice. The federal government has to abide by the RFRA, while the states only have to abide by the easier Smith ​standard (and whatever statutes they enact at the state level).

There are currently efforts to undermine RFRA at the federal level. For example, the Equality Act​, passed by the House of Representatives in May 2019, specifically includes a provision that would preclude religious freedom claims in response to discrimination claims outlined by the act. Instead of weakening protections for religious liberty, however, I think the Court should take this opportunity to overturn ​Employment Division v. Smith​. The case at hand, with regards to Catholic adoption agencies and same-sex couples, perfectly demonstrates why this is necessary. Regardless of whether you think Catholic agencies should work with same-sex couples, the outcome of this situation is startling: There are now less opportunities for children to be placed with loving families in Philadelphia than there were two years ago because CSS is no longer allowed to help. That’s a lose-lose situation.

Religious institutions should not be expected to sacrifice their values in order to contribute to public life, especially in situations where no one is being hurt by their contribution. Again, to be clear, CSS did not stop same-sex couples from adopting children, they simply had a policy of referring those couples to other agencies, of which there were plenty. Furthermore, CSS claims that they had never even been approached by a same-sex couple looking to adopt. The city’s decision to reevaluate their relationship with CSS, then, did not help anyone and hurt real people in need.

Again, to be clear, CSS did not stop same-sex couples from adopting children, they simply had a policy of referring those couples to other agencies, of which there were plenty. Furthermore, CSS claims that they had never even been approached by a same-sex couple looking to adopt. The city’s decision to reevaluate their relationship with CSS, then, did not help anyone and hurt real people in need.

If I have a genuine religious objection to a generally applicable, neutral law, I should not be turned away simply because the law is related to a “legitimate government interest.” Let’s look at an example as to why this is so important: Suppose a scientific study is released claiming the consumption of unleavened bread can be harmful to child development. Suppose my state passes a law, based on this study, instituting a penalty for anyone who feeds unleavened bread to children. I, along with many other Christian and Jewish citizens, strongly object to this law on the grounds that I maintain freedom to practice my religion as I see fit, which includes the consumption of unleavened bread. (Technically Catholicism doesn’t, but that’s not entirely relevant.) The government, in such a case, certainly has a legitimate interest in maintaining healthy child development, and the law in question would be rationally related to that interest. By the ​Smith ​standard, then, such a law would be constitutional.

Of course, in such an unlikely hypothetical situation, there would likely be other legal recourses to fall back on. ​Employment Division v. Smith ​is far from the only law governing religious freedom at the state level. But it should be clear that the principle espoused by such a law is at odds with the idea that we live in a country where we are truly free to practice our religion as we see fit.

 

Vince Mallett is a senior majoring in philosophy, with a minor in constitutional studies. He currently lives off campus, though he calls both New Jersey and Carroll Hall home. He can be reached at [email protected] or @vince_mallett on Twitter.

The views expressed in this column are those of the author and not necessarily those of The Observer.

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