Today, November 4, 2020, the Supreme Court is hearing oral arguments from foster parents and Catholic Social Services (“CSS”) and the City of Philadelphia (the “City”) regarding a conflict between the City’s foster care regulations and CSS’s sincerely religious beliefs.
As a person of faith or leader of a faith-based organization, what do you need to know about this case? How might the outcome impact your religious activities and mission? Finally, what should you do to prepare your faith community or organization?
Sharonell Fulton, Toni Simms-Busch, and Cecelia Paul are foster parents who have worked for many years with Catholic Social Services, a Catholic nonprofit of the Archdiocese of Philadelphia, to provide care for children in need.
CSS, in particular, has been providing foster case in Philadelphia since 1917, as part of its mission to “continue the work of Jesus by affirming, assisting and advocating for individuals, families, and communities.”
In the 1950s, the City of Philadelphia began facilitating and regulating the foster care system, including the participation of private foster care providers. The City now oversees all foster care to such an extent that “providing foster care without a [City] contract would be illegal.”
In 2018, the City of Philadelphia abruptly revoked CSS’s contract for foster care after learning that CSS would not sign a statement that would violate Catholic teaching regarding the structure and role of the family. The City has taken the position that unless CSS agrees to the City policy, the City will permanently exclude CSS from the foster care system. CSS and several foster parents filed suit alleging the exclusion is a violation of their First Amendment Free Exercise protections.
Although the case specifically focuses on CSS’s freedom to provide foster care, the case implicates broader questions about First Amendment Free Exercise protections.
The answers could impact whether and how faith-based organizations can perform corporal works of mercy in the public square, especially when doing so would require partnerships or cooperation with the government.
In connection with the case, CSS has asked the Supreme Court to revisit an infamous 1990 case, Employment Division v. Smith, which essentially held that the government can enact general laws that have an incidental burden on religious exercise as long as the laws are not targeted toward religious persons or practices. Many scholars believe the case incorrectly interpreted the First Amendment, impermissibly limiting Free Exercise rights.
If the Court does revisit Smith, the Court’s opinion could impact many areas of life for people of faith. One scholar has argued that the opinion could even impact future cases challenging pandemic-related restrictions on religious worship. Another scholar, Professor Helen Alvaré of George Mason University, has stated that “the court’s resolution of several questions in the case could affect cooperation concerning any religiously provided social services, education or health care.”
Below are a few steps faith-based nonprofits should consider as they reflect on and plan for the outcome in Fulton:
1. Strengthen Religious Identity. As discussed in Napa Legal’s recent webinars, an organization’s religious identity is a threshold issue in protecting the organization’s First Amendment rights. If your organization has not clearly articulated and documented the interconnection of its activities and policies with its sincerely-held religious beliefs, defending the organization’s religious liberty could prove difficult, if not impossible.
2. Evaluate Your Organization’s Legal Health. Your organization’s legal “health” (i.e., its compliance with corporate, tax, and other similar legal and regulatory requirements) is a prerequisite to successfully advocating for and defending its rights if necessary. For example, to bring a religious liberty claim in court, an organization usually must be a legally recognized entity in good standing. Many religious liberty cases have involved a review of corporate policies and bylaws, so reviewing and updating these documents is an important effort. See Napa Legal’s webinar Hardening the Target for examples of best practices to strength your organization’s governance.
3. Understand Existing Government Relationships. If your organization currently participates in a program that is sponsored or supervised by local, state, or federal government agencies, carefully review the terms governing such programs to better understand your organization’s obligations. For example, if your organization received a forgivable SBA loan under the Paycheck Protection Program, be sure to understand and meet your compliance responsibilities. Additionally, if you are currently receiving or considering accepting federal education funds, review the applicable documentation with special attention to the scope of your organization’s obligations and available religious liberty protections. Finally, consider developing a strategy to address your organization’s response should a government program in which you participate seek to impose requirements that conflict with your religious beliefs.
4. Follow Legal Developments. Stay up to date on this case and other developments in religious liberty. The Court’s opinion could be issued as early as December 2020 or as late as July 2021. The most likely timeline is for the opinion to be published in May or June 2021. You can follow legal developments and analysis by visiting the Becket website, as well as SCOTUSblog.org, and Catholic news sources such as the National Catholic Register and the United States Conference of Catholic Bishops religious liberty page. We also encourage you to subscribe to Napa Legal’s newsletter for monthly updates on topics relevant to faith-based nonprofits.
5. Pray. In everything, including uncertainty regarding religious liberty protections, remaining faithful to God’s call and trusting in His sovereignty is part of our ultimate vocation on earth. We can offer our anxieties to Him, knowing that all things will work together for the good. (Romans 8:28)
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