Midweek Message

Update, Monday, June 21 (Second day of Summer)

Jim Hopkins

June 19, 2021

From the Baptist Joint Committee of Religious Liberty (Thursday, June 17, 2021)

WASHINGTON – Today, the U.S. Supreme Court sided with Catholic Social Services in a dispute with the city of Philadelphia over the administration of a government-funded foster care program.

BJC Executive Director Amanda Tyler released the following statement after the Court’s decision:

“Chief Justice Roberts produced a unanimous result in favor of Catholic Social Services that focuses on a particular aspect of this government contract. The majority found that the city of Philadelphia’s nondiscrimination policy was not ‘generally applicable,’ pointing to a contractual provision that allows the prospect of a government official granting exceptions. This approach was somewhat surprising because there was no evidence that the city had ever granted an exception or that Catholic Social Services had asked for one.

The Court’s decision does not require religious exemptions in all future cases involving government contracts and nondiscrimination policies. That is a good thing because nondiscrimination provisions often protect religious liberty in government services. It is disappointing that the Court rejected the city’s compelling interest in the equal treatment of prospective foster parents and foster children, particularly in the context of government contracts voluntarily entered into by religious contractors.”

Fulton v. Philadelphia addressed whether government-funded foster care contractors must follow the government’s nondiscrimination rules in administering that program, which includes ensuring that everyone is being served.

BJC (Baptist Joint Committee for Religious Liberty) said yes, when faith-based groups voluntarily administer a government-funded program, those groups must work within the government’s own guidelines.

BJC filed a friend-of-the-court brief joined by other Christian groups on behalf of the city of Philadelphia. The Presiding Bishop of the Episcopal Church, the General Synod of the United Church of Christ, and the Evangelical Lutheran Church in America joined BJC’s brief.

The Supreme Court heard oral arguments in the case November 4, 2020. Read more about the case and access BJC’s brief at BJConline.org/Fulton.
BJC (Baptist Joint Committee for Religious Liberty) is an 85-year-old religiously based organization working to defend faith freedom for all and protect the institutional separation of church and state in the historic Baptist tradition.

“Far from burdening the free exercise of religion, a government’s ability to ensure that those who carry out government functions do so in accordance with that government’s nondiscrimination policy advances the cause of religious liberty.” (p. 4)

“[N]o organization–religious or secular–is entitled to veto the government’s choices on how a public program is to be run. Requiring government contractors to adhere to nondiscrimination policies in their performance of a public function does not burden religion. To the contrary, it protects the integrity of government-funded services and religious freedom. Granting government contractors a constitutional veto over nondiscrimination policies would harm the cause of religious liberty.” (p. 5, emphasis in brief)

“This is not a case about generally applicable laws regulating the general public and in so doing incidentally burdening religious exercise. Rather, it concerns voluntary contracting with a government to perform a public function on its behalf.” (p. 12)

“[T]he City’s nondiscrimination policy reflects not only a valid and compelling interest, but one that advances religious liberty, rather than infringes upon it.” (p. 14, emphasis in brief)

“Religious institutions participating in government-administered social programs like foster care services perform an immensely valuable function. Indeed, the reality of faith-based groups playing such a role in public life is a great strength of our pluralistic society. It is precisely because these services are so important that an entity making a voluntary choice to participate in such a public program is not entitled to displace the government’s nondiscrimination laws and policies in administration of the government’s own program.” (p. 13)

“Hard cases can arise when a government’s important interests must be balanced against substantial burdens on religious exercise. This is not such a case. Here, the City’s nondiscrimination policy reflects not only a valid and compelling interest, but one that advances religious liberty, rather than infringes upon it. Nondiscrimination laws like the Fair Practices Ordinance offer critical protection to religious liberty in a pluralistic society, as do nondiscrimination provisions included in government contracts.” (p. 14)

“The City’s decision to require government-sponsored foster care agencies to consider all qualified parents thus ensures that all communities—including religious communities—are treated by their government with equality and dignity. It also furthers the ultimate purpose of a public program for foster placement: safeguarding the best interests of children within the government’s custody by recruiting the broadest possible pool of qualified foster parents to care for them.” (p. 17-18)

“A prospective foster parent that is rejected for being Baptist, or for being in a same-sex marriage, or another protected characteristic, is likewise a victim of discrimination, whether or not some other agency is willing to consider them. Rejection as a foster parent by an agency carrying out a delegated government function, whether for reasons of sexual orientation or religion, carries with it the sting of public rejection, and at least the implication of state-sanctioned discrimination. These harms are grave and destructive to the human dignity in a pluralistic society.” (p. 18)

“There is no free exercise right to extract a subsidy for religious work in a government program that contravenes the City’s own, democratically determined conception of the public interest.” (p. 21)

“The recipient of the government funding therefore does not give up their right to speak on contrary views—or, as here, to maintain and exercise their religious views—only the right to speak or act on those views through the particular project funded by the government.” (p. 24, emphasis in brief)