Thoughts on the Fulton Oral Argument

Marty Lederman

Early yesterday I published a long post here in which I tried to identify the various arguments that are salient in the Fulton case--and those that shouldn't be.  The fascinating and wide-ranging oral argument in the case yesterday raised virtually all of the issues I discussed.  

As I suspected, the Justices didn't seem too interested in whether they should overrule Employment Division v. Smith, because the outcome in this case doesn't turn on that question, in either direction.

Many of the Justices appeared to be troubled by Philadelphia's refusal to contract with Catholic Social Services (CSS) to be a Family Foster Care Agency (FCA) unless CSS agrees not to discriminate against same-sex couples when it certifies whether particular applicants are qualified to be foster parents for children in the City's custody.  As far as I could tell, however, the Justices were anything but settled about how to situate those concerns within the Court's Free Exercise doctrines--indeed, they expressed deep uncertainty about just which of those doctrines is, and is not, pertinent to the case.

So I thought I'd offer a few additional thoughts here on the major themes of the oral argument.  So as not to make this post overly long, I'll assume familiarity with my post from yesterday, where I discuss some of these matters in greater detail.

Is Philadelphia's Nondiscrimination Condition Generally Applicable?

In my post yesterday, I suggested that the case might possibly turn on a rather narrow, fact-dependent question--namely, whether the City has discriminated against CSS on the basis of its religious opposition to same-sex marriage.  That's the basis of the Solicitor General's argument on behalf of CSS, and it was the focus of CSS's reply brief.  In the oral argument, Counselor to the SG Hash Mooppan repeatedly urged the Court to decide the case on this case-specific theory--in particular, on the ground that the nondiscrimination condition in Philadelphia's contract with FCAs is not "generally applicable" (at least not in practice).

On its face, that condition, found in Section 15.1 of the current standard contract, is unconditional and admits of no exceptions:

Provider shall not discriminate or permit discrimination against any individual on the basis of actual or perceived race, ethnicity, color, sex, sexual orientation, gender identity, religion, national origin, ancestry, age, disability, marital status, source of income, familial status, genetic information; domestic or sexual violence victim status; or Human Immunodeficiency Virus (“HIV”) infection status. 

Mooppan insisted, however, that in practice the City has recognized "a slew of" (or "myriad") exceptions to this nondiscrimination rule for conduct motivated by secular reasons and, "having exempted comparable secular conduct, [the City has] thereby devalu[ed] CSS's religious concerns," which allegedly violates the Free Exercise Clause, even within the context of performance of a government contract.  Such exceptions, argued Mooppan, prevent the condition from being "generally applicable," thus triggering heightened scrutiny, and they "undermine" what might otherwise be a compelling City interest in nondiscrimination in the family-certification process, thereby making it impossible for Philadelphia to satisfy that heightened scrutiny.  In support of this argument, Mooppan and CSS lawyer Lori Windham repeatedly cited Church of Lukumi Babalu Aye, Inc. v. City of Hialeah (1993).

The problem with this argument is that there really isn't much, if any, evidence of such underinclusiveness by virtue of City-permitted exceptions.  [UPDATE:  Michael McConnell writes that "[i]t is undisputed that the City carves out other exceptions from its nondiscrimination policy, for other foster-care organizations; moreover, there is a catch-all exceptions policy big enough to drive a truck through."  Neither of these assertions is true:  It is very much disputed whether there are other exceptions for other foster-care organizations (because there aren't any); and there's no catch-all exceptions policy, let alone a truck-sized one.]

Mooppan pointed to three alleged exceptions, but none of them appears to be remotely comparable to an FCA categorically refusing to certify families as eligible to care for foster children because of a protected characteristic.

i.  Mooppan argued that "[f]oster parents can be denied the ability to serve as foster parents because of their disability."  This is the only purported example he offered involving an exclusion of prospective parents on the basis of a protected characteristic.  Mooppan was referring here to the provision of state law that instructs FFCAs, "when assessing the ability of applicants for approval as foster parents," to consider whether the applicant has "[a] demonstrated stable mental and emotional adjustment," and that if there's "a question regarding the mental or emotional stability of a family member which might have a negative effect on a foster child," to "require a psychological evaluation of that person before approving the foster family home."  

Even if this instruction were inconsistent with Philadelphia's nondiscrimination requirement for FCAs, it could hardly be said to undermine the City's compelling interests, because it's (at most) a preemptive state law, not an "exception" the City itself has promulgated.  In any event, it's obviously not inconsistent:  If a mental disability prevents a prospective parent from being able to adequately care for a foster child, accounting for that fact in the certification process surely wouldn't be a form of proscribed "disability discrimination" under the City's contract (as Justice Sotomayor remarked, it'd simply be an assessment that "they can't do certain things for the child which are required").  Nor would such a case-by-case evaluation of mental fitness be remotely comparable to refusing even to consider whether any same-sex couples qualify under state law as capable of caring for foster children. 

ii. Mooppan also stated that the City "has tolerated racial and ethnic-based outreach to ... foster parents."  But as a City administrator testified, agencies may target their outreach efforts in particular communities only if they serve “all members of the City of Philadelphia.”  Such focused outreach is not a form of prohibited "discrimination against any individual."  As the City noted in its brief, "[h]istorically black colleges do not discriminate, for instance, by establishing programs to 'disproportionately appeal to' black students, provided they are 'open to all on a race-neutral basis' (quoting United States v. Fordice (1992) (Thomas, J., concurring)).  And DHS has reasonably concluded that encouraging outreach toward historically underserved communities enhances rather than undermines its goals of maximizing the pool of foster parents and making its foster-care system more inclusive."

iii. Finally, Mooppan noted that the City itself might conceivably consider race when deciding where to place foster children.  According to City counsel Neal Katyal, Philadelphia has only done so once:  where a child in City custody had used particular racial slurs, the City DHS avoided placing that child in a family with members of the race he had insulted.  In any event, as the Department of Health and Human Services notes, considering race in a placement decision, "on an individualized basis where special circumstances indicate that their consideration is warranted" in assessing a child’s best interests, doesn't amount to prohibited "discrimination against" families on the basis of their race.  Nor does such a case-by-case consideration of race by the City itself in its assessment of where to place a particular child bear upon, let alone undermine, the City's interests underlying its nondiscrimination requirement at an earlier, different stage of the process--namely, in deciding who satisfies the state-law criteria to be eligible to serve as foster parents.  (I assume the Chief Justice was getting at something like this when he asked Mooppan whether a government's rules have to be neutral and generally applicable "across the board" in the context of contracting.)  

* * * *

As the Court explained in Lukumi, and as the SG himself acknowledges in his brief in Fulton, not all exceptions or anomalous applications foreclose a rule's "general applicability" for Free Exercise purposes.  Heightened scrutiny is only appropriate where the state "fail[s] to prohibit nonreligious conduct that endangers [the asserted governmental] interests in a similar or greater degree than [religious conduct]” (Lukumi).  It seems evident to me, as I wrote yesterday, that the examples cited by Mooppan and Windham don't undermine the City's interests in enforcing its nondiscrimination requirement at all, let alone to the same degree as would a decision by the City to allow FCAs to turn away applicants at the start if they have one of the protected characteristics.  As Justice Barrett suggested, the alleged exemptions don't offer an "apples-to-apples" comparison, in contrast to her hypothetical in which a state grants exemptions for Sunday Sabbath observance but not Saturday Sabbath observance.  It's more like apples-to-elephants.  (Nor does this case remotely resemble Mooppan's hypothetical in which a state prison allows contractor or employee prison guards to bring peyote into the facility but not to bring in hoasca tea (a reference to the discriminatory treatment at issue in the Court's decision in Gonzales O Centro Espírita Beneficente União do Vegetal  (2006)).   Accordingly, even taking the SG’s alleged exceptions at face value, they wouldn’t trigger heightened scrutiny for lack of “general applicability.”

One other point on the City's alleged underinclusiveness is worth noting:  As Justice Kagan noted to Mooppan, if his examples truly did "undermine" the City's interest in eliminating sexual-orientation discrimination, presumably they'd likewise undermine the state's interest in proscribing the other forms of discrimination listed in the standard contract, including discrimination based upon a parent's race or sex or religion.  (After all, at least one of Mooppan's alleged exemptions involves race itself, whereas none of them is an example of permitted or tolerated discrimination on the basis of sexual orientation.)  Mooppan insisted that the race-discrimination prohibition wouldn't be affected but, as Justice Kagan noted, he didn't offer a reason why not.  And as Katyal noted, that's not merely a matter of abstract concern:  CSS itself apparently required prospective parents to provide a clergy letter attesting that they were religiously observant.  And the largest government-funded FCA in South Carolina, Miracle Hill, allegedly refuses to work with families, including Jewish and Catholic families, that don't adhere to its faith. 

License or Contract Condition?:  Is Philadelphia Acting in a Sovereign, Regulatory Capacity or in its Managerial Capacity?

As I discussed yesterday, a major theme of the City's and the private respondents' briefs is that, even if the Court were to overrule Employment Division v. Smith and return to its pre-1990, Sherbert/Yoder Free Exercise jurisprudence, CSS would be unable to demonstrate a constitutionally cognizable burden on the exercise of its religion because the City is merely directing its contractors about how to perform their jobs on behalf of the government rather than regulating private individuals in its capacity as “sovereign.”  The Court has announced or applied this distinction in many different constitutional contexts.  See Engquist v. Ore. Dep’t of Agric./NASA v. Nelson/Waters v. Churchill/Garcetti v. Ceballos/Board of County Commissioners v. Umbehr/Rust v. Sullivan/Bowen v. Kendrick/AID v. AOSI/etc.  

And it's very easy to see why that distinction makes sense.  Justice Breyer's two hypotheticals yesterday starkly illustrate the point:  If a company owned by observant Jews were awarded a contract to deliver particular foods to military bases, would the Free Exercise Clause give the owners a right to replace the Army's order for pork with some other meat?  If someone with a religious conviction that men and women shouldn't commingle received a contract to drive a city bus or train, would that person have a constitutional right to insist that men and women sit separately on the public bus?  These questions--and countless other examples that are easy to conjur--answer themselves.

Many of the Justices yesterday (including the Chief Justice and Justices Thomas, Alito, Sotomayor, Gorsuch and Barrett) appeared to be very interested in figuring out on which side of this managerial/regulatory divide the Fulton case falls.  

According to CSS attorney Windham, although the case might appear to be an example of the City merely acting in its "managerial" capacity, prescribing the way in which FCAs perform their governmental functions, in fact "the City is reaching out and telling a private religious ministry which has been doing this work for two centuries how to run its internal affairs"--to "tell religious groups who have been doing this prior to when the City got involved we're going to exclude you, you can no longer carry out this work unless you take actions that are contrary to your faith."

This is, I think, simply wrong.  As I explained yesterday, in the absence of an FCA contract, CSS--or anyone else--is free to engage in virtually all of the charitable functions regarding vulnerable youth that CSS has traditionally performed.  Lori Windham may be right that CSS "has exercised its faith by serving at-risk children in Philadelphia for two centuries," but the denial of the FCA contract in no way precludes CSS from "serving at-risk children in Philadelphia."  CSS is not even precluded from offering assistance to children in the foster care system, and the families that care for them.  Indeed, as Neal Katyal stressed repeatedly yesterday, CSS continues to receive $26 million a year from the City to provide case-management services to foster children!  It also continues to run two congregate-care facilities, which provide group housing for children who have been removed from their homes because of abuse or neglect.  And CSS remains free to use its own resources to provide further services to children in foster care and to operate its private adoption program, in which it assists birth families who choose to place their infants for adoption.  (Justice Barrett asked whether it's permissible to recruit foster families without an FCA contract.  I'm fairly certain the answer to that question is "yes":  Anyone can, on their own time and with their own resources, search out families to be foster parents; train those persons about how to be effective foster parents; and recommend that the City (and its FCAs) consider certifying such persons as eligible to be foster parents.)

The principal thing CSS cannot do without an FHA contract is to perform the delegated governmental function of deciding whether other private persons are legally eligible under state law to become foster parents to care for children who are wards of the City--a function the Pennsylvania DHS would perform in the absence of a City contract with FCAs, and a function that CSS could never have performed, using its own resources, outside its role as contractor of the City and delegate of the Pennsylvania DHS. 

Is 1920, not 2020, the Pertinent Constitutional Baseline?

The most surprising, and potentially alarming, thing about the oral argument yesterday was the suggestion by Lori Windham, which appeared to find favor with (or at least capture the interest of) some Justices, that perhaps the constitutional analysis should change by virtue of the fact that the governmental function in question was once not a government function, but was instead something done primarily or exclusively by private parties, who were able to act without the conditions that the government now imposes upon operations done on its behalf.  

According to CSS's brief, the Catholic Church opened its first orphanage in Philadelphia in 1798.  According to a 1951 study cited by CSS, Pennsylvania began significantly regulating the treatment of dependent and neglected children in 1883, and then, when the legislature created the Pennsylvania Department of Welfare in 1921, the State itself became principally responsible for the performance and regulation of such functions.  (I don't know offhand whether the history is more complicated than this--for example, to what degree private orphanages and the like were regulated before 1883, just as Sally Gordon has shown that churches themselves were during the Nineteenth Century.)  Windham appeared to be suggesting that because CSS and its predecessors were largely unregulated in their treatment of at-risk children 100 or 140 years ago, any restrictions the City imposes today on the operation of its own dependent-care services--a century or more after the function was "monopolized" by the government--should be assessed as regulatory burdens on CSS's own ministry (as it existed in 1882 or in 1920?), rather than merely as conditions on a contract to perform government services.  Justice Barrett's hypothetical to Neal Katyal captured the flavor of this idea:

Well, let's imagine that the state takes over all hospitals and says from now on, you know, we are going to be responsible for hospitals, but we will contract with private entities to actually run them.  And so there's a Catholic hospital [that] gets a contract with the City to run it.  In fact, it's a Catholic hospital that's [been] in existence before the state adopts this policy.  And ... the contract the state gives everyone [provides] that you can get some exceptions for [performing] some medical procedures, but every hospital has to perform abortions.  In that context, do we analyze this as a licensing question, or, given that the Catholic hospital can't even enter the business without this contract, do you still say that this was the provision of a contractual service? 

To similar effect, Justice Alito asked Jeff Fisher:  "Do you think it's fair to say this is simply a government contracting case when Catholic Social Services and other agencies cannot participate in this activity at all, an activity in which some of them at least have been participating long before it was taken over by the state, unless they are approved by the City?  Even if it's partially a contracting case, is it not also partially a licensing case?"

There are two major problems with this suggested pre-1921 baseline for assessing the impact of the City's current contracting conditions on CSS's freedom of religious exercise.  

First, it's difficult to identify just what CSS did before 1921 that's limited by the City's contractual conditions today.  Back in 1920, after all--or in 1882--CSS might have been relatively free, as a matter of state law, to make efforts to facilitate voluntary transfers of children from one family to another; but it certainly did not have the power to convey (or deny) a legal right upon others (today's foster parents) to obtain legal custody or guardianship over children, let alone over children who are wards of the City.  (As Neal Katyal put the point:  "Private entities have never done this because whatever these entities [such as CSS] did before, ... they never selected who cares for kids in City custody, applying state criteria.")  And to the extent CSS's complaint is that it is no longer able to facilitate voluntary transfers of neglected children without state regulation, that's a function of the legal developments in the late Nineteenth and early Twentieth Centuries--i.e., of the state's increasing control of the foster care system generally, and the rules for foster family certification, in particular--not of the nondiscrimination condition in the City's FCA contracts in 2020.

Second, and more fundamentally, the state's "monopolization" of a function that once was performed primarily by private parties--and the state's exclusion of such private parties from that function except pursuant to conditional employment or contractual relationships to assist the state--does not create a constitutionally cognizable burden on the religious exercise of private parties simply because they once independently performed that function for religious reasons.  As the private respondents write in their brief:  "The Court has never allowed private parties to dictate government policies because activity within the same sphere was once conducted by private parties. ...  A variety of core governmental services—including the military, police, and libraries—were once privately operated.  But when governmental agencies undertook to provide them as public services, they did not need to run the programs in accordance with the religious (or any other) beliefs of organizations that previously provided those kinds of services."

The private respondents' counsel, Jeff Fisher, was right to invoke Lyng v. Northwest Indian Cemetery Protective Ass’n (1988) at oral argument to demonstrate why that must be so.  Lyng is the leading (pre-Smith) case for the proposition that a government does not impose a constitutionally cognizable burden on religion when operation of its internal affairs has a detrimental impact on private parties' ability to practice their religion.

In Lyng, the U.S. Forest Service announced a plan to build a road through, and to allow harvesting timber on, portions of the Six Rivers National Forest in northwestern California, an area sacred to several Indian tribes.  The area was the tribes’ most holy site; for generations they had continuously used it for religious practices forming the very core of their traditional religious belief system.  The Court accepted representations that the USFS’s plans, if implemented, would interfere significantly with tribal members' ability to pursue spiritual fulfillment, "that the logging and roadbuilding projects at issue … could have devastating effects on traditional Indian religious practices,” and that “the threat to the efficacy of at least some religious practices is extremely grave.”  

Even so, the Court ruled, the land belonged to the federal government, and “the Constitution simply does not provide a principle that could justify upholding respondents' legal claims” against the government’s “internal operations” of its own property.  “Whatever [constitutional] rights the Indians may have to the use of the area,” the Court wrote, “those rights do not divest the Government of its right to use what is, after all, its land.”  (Emphasis in original.)

Of course, what the Court did not even mention in Lyng was that once upon a time the government did not own that land--it wasn't always the "Six Rivers National Forest."  Therefore, for many centuries the tribes were unrestrained by law or government coercion in respect to their ritual use of the land.  Then, one day (I assume sometime in the Nineteenth Century), the federal government assigned itself, and began to enforce, a legal property right to that land ... and eventually (in the 1980s) chose to do something with its property that threatened to virtually extinguish the tribes’ religion.  The fact that the tribes were once free to act as they wished, unencumbered by any state laws, and that the government only later established a “monopoly” right to control the land, did not affect the Lyng Court’s decision that there was no cognizable Free Exercise burden:  the circumstances of the Nineteenth Century did not establish a constitutional baseline.  

Perhaps you're somewhat sympathetic, as I am, to Justice Brennan's dissent in Lyng, arguing that the Free Exercise Clause ought to impose at least some restriction on the government's use of its own property in a way that such such a destructive impact on a community's ability to exercise core facets of its faith tradition.  Even so, however, that surely wouldn't mean that there'd be a constitutional right for the government's own religious employees and contractors to disregard the way in which they've been instructed to do the government's work.  As the private respondents in Fulton write in their brief, “[t]here is no reason why it would have made any difference in Lyng if the government had hired members from the Yurok tribe to pave the road.  If the tribe members had refused to build the road through the national forest, the Free Exercise Clause would not have required the government to keep those workers in its employ or reroute the road.”

So, too, in Fulton itself:  The fact that a predecessor of CSS might once, long ago, have been free to facilitate the protection of neglected children without extensive state regulation does not mean that the government’s rules for its contractors' operation of the government's own foster-care system today, more than a century later, impose a cognizable burden on those contractors' exercise of religion.