Litigation Update: Religious Foster Care Agencies and the First Amendment

Operator:  Welcome to The Federalist Society's Practice Group Podcast. The following podcast, hosted by The Federalist Society's Religious Liberties Practice Group, was recorded on Tuesday, December 10, 2019, during a live teleforum conference call held exclusively for Federalist Society members.        

 

Wesley Hodges:  Welcome to The Federalist Society's teleforum conference call. This afternoon's topic is titled "Litigation Update on Religious Foster Care Agencies and the First Amendment." My name is Wesley Hodges, and I am the Associate Director of Practice Groups at The Federalist Society.

 

      As always, please note that all expressions of opinion are those of the expert on today's call.

 

      Today we are very fortunate to have with us Ms. Lori Windham, who is Senior Counsel at the Becket Fund for Religious Liberty. After our speaker gives her opening remarks, we will have time for your questions, so please keep in mind what you would like to ask.

 

Thank you very much for sharing with us today. Lori, the floor is yours.

 

Lori Windham:  Thank you so much, and thanks for having me on today. I'm really excited to talk about these cases. There's been a lot of active litigation on this issue over the last couple of years. And now, this issue may be heading to the Supreme Court.

 

      So I want to talk a little bit starting off with talking about Fulton v. City of Philadelphia, which is a case that's going to be conferenced at the Supreme Court this Friday and could be put on their docket for the spring. But first, I want to zoom out a little bit and talk about how we got here and how this issue has developed.

 

      So nationwide, we have a foster care crisis. We have over 600,000 children who are in foster care in any given year. Thousands of those children are going to be up for adoption. These numbers have only grown worse as the opioid epidemic has taken hold and more children have to be separated from their families.

 

      When parents are unable to care for a child and the child has to enter foster care, there are different processes that are put in place. The system varies a little bit from state to state, but the commonality is the children are in the care of the state. And the state then works with diverse providers to ensure that those children can find a home and a family.

 

      For many children, their goal is reunification, to go back to their birth parents and to be able to reunify those families. However, in some cases that's not possible, and so these children who are in the child welfare system will then be put up for adoption.

 

      When a child enters the system, they are generally placed in a loving foster home. The goal for most children is to have them placed with a foster family. There are other options out there such as institutions and group homes. Generally, by law, the preference is to have children not placed in those institutions but actually placed with a foster family. In order to make that happen, it's imperative that cities and states can find more families who are willing to join the foster care system and who are willing to open their homes to these children.

 

      This is hard work. This is heartbreaking work, and many foster parents drop out each year because they either have adopted children and their homes are full or it's simply become too difficult and so they need to go ahead and move on to other things.

 

      Historically, cities and states have relied on private foster and adoption agencies to recruit families to come in and fill this gap. If you look back at the history of child welfare in the United States, generally, religious and private organizations who are doing this, say, a century ago, they were out there opening up orphanages, helping find homes for children who were not able to remain with their parents, and doing this work.

 

      Over the course of the 20th century, foster care became a function of the state and became something that was run and regulated by state but still in conjunction with private agencies and religious agencies. And that's how we arrive at the system we have now, where you have private agencies who have been doing this work longer than the government has and have been doing it very well and want to continue that work.

 

      Over the last several years, we have seen an increase in conflicts between religious agencies and state and local governments, because those religious agencies have beliefs about marriage that depart from the definitions of marriage that have been adopted by the state and local governments that they partner with. And so we have seen serial closures of religious agencies across the country. This has happened in Boston and San Francisco, here in Washington, D.C., the entire State of Illinois, Buffalo, New York, just last year, and other places as well.

 

What happens is if states begin to insist that private foster and adoption agencies adopt the state's definition of marriage and provide written, home-studied certifications for couples who difference of marriage and who's relationship is different than the sincere religious belief of the agency, then those agencies have not been able to make those written certifications, and they're put to a very difficult choice. Do they say something and do something that violates their sincere beliefs or do they close their doors?

 

And then again and again, these agencies have been forced to close their doors. In reaction to that, several states have actually passed laws to specifically protect religious foster and adoption agencies, and I'm going to come back to those in a little bit. But I want to from that broader picture now zoom in and talk about Philadelphia.

 

The Archdiocese of Philadelphia has been providing care for orphans, care for foster and adoptive children for over a century. They were originally doing this as far back as the yellow fever epidemic, helping to find homes for children who were orphaned during that time. They had had religious sisters who were involved in finding homes for children whose parents were no longer able to care for them. And this goes back many years.

 

Today that work is carried out by Catholic Social Services of Philadelphia. They have a thriving or have had a thriving foster care ministry. What they do is they recruit foster parents. They support and help walk with them through this very difficult process. They've had great success in doing this, and I think that their foster parents and children are some of the best examples.

 

One of their great examples, Mrs. Paul, Cecilia Paul, was a foster parent for 46 years and fostered 133 children in her time working with Catholic Social Services. She adopted a number of them as well and was doing this work well into her -- sadly, Mrs. Paul passed away just last year, and it's been a big loss to her children, her grandchildren, and those who've depended on her.

 

Sharonell Fulton is another foster mother who's been working with Catholic Social Services for 25 years. In those 25 years, she has fostered 40 children. Another foster mom who has not been doing this quite as long but is also part of this case and has been impacted by this is Toni Simms-Bush. Toni is a social worker who's filled a number of different roles within the child welfare system. And after many years of seeing how the system worked, she decided to become part of that herself, and she fostered and adopted two young brothers and has found real joy in welcoming them into her home.

 

The way that foster cares works in Philadelphia, which from what I've seen is pretty common, is that families work with a particular agency. That agency helps them get their license, does all their background investigation, does what's called a home study, which is a very detailed and intensive look at the family's life and their suitability to become foster or later adoptive parents.

 

Once those families have worked with their agency and been able to obtain a state license, they continue to work with that agency and any foster children who are placed in their home are going to be overseen by that agency. And the agencies work really hard to partner with their families to provide them the support they need to ensure that their children have the kind of help that they need at this very difficult time in their lives.

 

And again and again, as this case has gone forward, we have heard the stories of how Catholic Social Services has really done an exceptional job of partnering with these parents, of helping them to find the support and the care and the resources and the training that they need to help these children.

 

So we go back to about 18 months ago, in March of 2018, Catholic Social Services was providing the same services in the same way that it had for many years, and there was a newspaper article. The Philadelphia Inquirer wrote an article about a same-sex couple who had approached a different agency and had been referred elsewhere because the agency could not provide a certification for a same-sex couple. In the course of reporting that article, the reporter reached out to the Archdiocese of Philadelphia and Catholic Social Services. They confirmed their long-standing policy, which is that if they had been approached by a same-sex or unmarried couple, they would refer them to another agency where they could be able to receive that home study certification.

 

It's important to note here, they had never even had a same-sex couple approach them and ask them to provide that certification for them. And yet, because they were quoted in this article in The Philadelphia Inquirer, this became a huge story in Philadelphia and it really kicked off a firestorm.

 

The city council passed a resolution condemning what they call, "discrimination under the guise of religious freedom." The head of the Department of Social Services who was in charge of foster care called the head of Catholic Charities into her office. She also investigated agencies, only religious agencies and one secular agency, to see what their policies were regarding same-sex couples. The mayor had strongly criticized the Archdiocese over a number of things.

 

And shortly after all this happened, Catholic Social Services was informed that they would no longer be able to take in new foster children. What this meant was that families like Sharonell's, like Mrs. Paul's, like Toni's weren't able to take in any new kids simply because they worked with Catholic Social Services, and the City of Philadelphia disagreed with Catholic Social Service's religious beliefs.

 

And so these families, even though they had been valuable and an important part of the city's foster care system, are no longer able to welcome new children into their homes. This all happened just a few days after Philadelphia had announced an urgent call to recruit 300 more foster families into the system just to be able to meet the needs that they currently had.

 

Nevertheless, they shut down foster care intake, and I'm sad to say that that shutdown has continued until today. Shortly after that happened, Becket filed a lawsuit on behalf of Sharonell and Toni and Mrs. Paul and Catholic Social Services. We asked for a preliminary injunction saying that this was a violation of the Free Exercise Clause, of the Free Speech Clause, and also of state law.

 

We did not receive the preliminary injunction. We did have a three-day evidentiary hearing. It was one of the longest and largest PI records of any preliminary injunction motion that I had ever been a part of. But after an extensive record and a three-day hearing, the district court denied the preliminary injunction finding no violation of the Free Exercise or Free Speech Clauses.

 

We appealed this to the circuit. While that appeal was going on, we also filed an emergency motion with the Third Circuit, which was denied, and then with the Supreme Court. And I note all this background because it's important to note that when we filed that emergency motion, it was before the eight-member court. This was before Justice Kavanaugh was confirmed, and three justices, Justices Thomas, Alito, and Gorsuch, indicated that they would have given us that relief and would have granted that emergency motion.

 

So this case has already had some attention from the Supreme Court. But the eight-member court did not grant the motion, so we went back down. We had the appeal before the Third Circuit. The Third Circuit, again, ruled against Catholic Social Services saying that Philadelphia had acted pursuant to a neutral and generally applicable law, that this was not a free speech violation, that this was all governed by the contract, and also ruled against us on the other state law claims.

 

And so now we have petitioned the Supreme Court to take this case. The questions that we have presented are, first of all, a question on which there is a circuit split: how do you interpret the Free Exercise Clause? What sort of evidence do you need to put forward in order to show that a law is not neutral and generally applicable? And then also, another question, which has gotten a lot of attention in recent months, is whether the current system, whether the Employment Division v. Smith case that governs free exercise law needs to be revisited.

 

Four justices have indicated that they're interested in revisiting Smith, and so we put that question before the Court as to whether this is an issue that they want to revisit now in this case. Third, we also asked the Court to consider the free speech arguments in the case since there is a split here both with the Fifth Circuit and also departure from governing Supreme Court precedent.

 

So that is the petition that is going to be considered at conference this Friday for the first time. But I also wanted to touch on a couple of the other cases that are going on. What we've seen as these cases have developed is that this is an issue that is going to continue to reoccur. Problems will continue to happen because of the way these cases arise and because of the way that the foster and adoption system works, these cases tend to involve a lot of emergency motions and urgent practice.

 

You're talking about ministries here who are moving quickly to serve kids in need. You're talking about state systems which are generally overtaxed and need all the help they can get. And you're talking about agencies who are really at risk of closure if they have to go very long without being able to provide foster care or adoption services.

 

And it's important to note here that when we're talking about these cases, state governments and local governments are the ones who have custody of the children. They decide where the children get placed. And so if you are excluded from working with your state or local government, you are excluded from the child welfare system full stop. And so if these agencies are excluded for very long, inevitably, they will have to close their doors, which is why a lot of these cases tend to arise on preliminary injunctions -- tend to go up on preliminary injunctions and urgent motions.

 

So one other case that Becket is also involved in is Buck v. Gordon. This is a case in Michigan. Michigan is one of the states that adopted a law specifically designed to protect child welfare providers and to protect these agencies and allow them to continue to work and follow their sincere religious beliefs.

 

That had been challenged in a prior lawsuit. The State of Michigan originally had defended its law, but after the current attorney general was elected, Michigan no longer is defending that law. They have adopted what I would characterize as an absurd interpretation of the law that renders it meaningless and are threatening to now go after and start closing down religious child welfare agencies who are not following the state's new policy.

 

So St. Vincent Catholic Charities is an adoption and foster care agency that has been active in Michigan for more than 40 years. They've been partnering with families to help children find homes. Some of the families they've partnered with have also been part of this lawsuit.

 

That includes Shamber Flore, who is a young woman who has an amazing story of overcoming abuse and becoming a thriving young adult thanks to the foster family and adoptive family she found through St. Vincent. This is a family who said they would not have been able to continue their journey of fostering and adopting if it were not for the excellent support they received from St. Vincent Catholic Charities.

 

They're also joined by Chad and Melissa Buck. Chad and Melissa are a young couple who experienced infertility, decided to adopt. They decided to adopt a child from the child welfare system, and they got a call from St. Vincent saying we have three children, siblings, will you take them in? And they said yes. And they adopted those three siblings. Later on, another sibling came into the system, and they adopted that sibling as well. And then a fifth child came into the system. So they went from, in a very short time period, went from having no children to having five.

 

All of their children have various special needs. This has been a really difficult and intense journey, and yet, it's also been one that has created a lot of joy for their children and their family. And now Chad and Melissa are great advocates for St. Vincent and great advocates for foster care and adoption. They work alongside St. Vincent to recruit more families in because they believe this is such a blessing and they want more people to be a part of it.

 

St. Vincent faced closure under Michigan's new policy, and so they went to court together with the Bucks and Ms. Flore and were able to win a preliminary injunction under the Free Exercise Clause. The court determined that the state had impermissibly targeted them and was not acting under a neutral and generally applicable law under the Free Exercise Clause. And so, therefore, they were able to receive a preliminary injunction.

 

That case is currently on appeal [in the Sixth] Circuit. The State of Michigan tried to get an emergency stay pending appeal, basically to put the injunction on hold and allow them to move forward with penalizing St. Vincent while this case proceeds. The Sixth Circuit recently denied that. And so St. Vincent retained its preliminary injunction, retained the protection that it needed to keep its doors open. And that case is currently proceeding before the Sixth Circuit.

 

I want to flag a couple other cases going on too, so I'm not going to go into any great detail because I'm no expert. But just so you have a lay of the land, there's also a pending Second Circuit case. This is the New Hope case involving a private adoption agency, which is not a state contractor but is regulated by the state. New York has threatened to shut them down, again, over what it claims are violations or potential violations of its non-discrimination laws or regulations.

 

That case was pending before the Second Circuit, and there was some sort of threat of imminent enforcement. And so the Second Circuit actually granted an emergency injunction pending appeal for New Hope. And then they scheduled expedited oral argument, I think it was about two weeks, between when they granted the injunction and the oral argument was, happened very quickly. And so we're expecting to hear something from the Second Circuit on this very soon.

 

I want to mention another set of cases which overlaps with this a bit, and some of you may have heard about. There's the Miracle Hill case in South Carolina. There's Marouf v. Azar in D.C., and also this gets into the Buck case and some others. These cases involve federal regulations that are non-discrimination regulations for foster and adoption for those engaged in child welfare work.

 

And there have been challenges to those on both sides, both from religious agencies who've said that these federal regulations are going too far and threatening religious agencies. That was the case in the Buck case in Michigan where the court also enjoined the federal government. And that has been the claim in other cases as well.

 

I would also note that there have been challenges from the other side where advocacy groups have said that it is wrong for the federal government to accommodate. That in a sense, it's not doing enough. It needs to enforce and not create exemptions from these regulations. And so those cases are pending as well.

 

So this is an area of the law that has been in really active litigation for the last couple of years, and I expect that that is going to continue until the Supreme Court steps in. And I think it's probably going to continue, unfortunately, with a lot of urgent and emergency motions practice until we get some answers here.

 

To end where I began, this is a problem that has been brewing for quite a while now. For a number of years, since these shut down, they didn't challenge this in court, and so we saw a lot of losses to the foster and adoption system. Now, we have seen some really good actions in terms of states which have taken the initiative and passed laws to make sure that these agencies are protected and with agencies who are standing up and challenging these attempts to force them to close their doors.

 

And so I'm encouraged by where these cases are at and where they're going, so hopeful that we will see a Supreme Court decision on this soon. With that, I know there's a lot of data here and a lot to unpack, so I'm happy to take any questions you have.

 

Wesley Hodges:  Thank you so much, Lori. Here's our first caller.

 

Caller 1:  Oh, hi, yeah. Thank you very much for a great presentation. For the sake of what used to be my client and I used to be on the board of directors over, probably won't identify myself or the agency. But suffice it to say that 20-some years ago, when the 1994 legislation came around to redo adoption and foster care in order to take away the racial prejudices and biases that were put in place, used to be extremely difficult to foster or adopt a child from another race, particularly if you were, for example, a white couple trying to adopt an African-American child or another type of child, you had to go past all these sort of racial tests, sensitivity tests.

 

And the 1994 Congress upended that, and we did a lot of work on that front. And at that time, we saw the same thing coming down the road from the same type of people that were going to start challenging exactly what's happening now. And as far as a couple of anecdotes, we were -- actually, Massachusetts, back in the ‘90s, passed a law saying the same thing, that if you discriminated based upon religion or sexual preference, you weren't allowed to provide services in the state. We said, "Okay, thank you. We're not going to give up our religious tenets or our stuff for that, so thank you very much. We'll leave Massachusetts."

 

Within two years, they came begging back saying, "We can't place the kids. We have a crisis in foster care. What do you want?" And you're probably familiar with this, they changed the law. Then we came back, and very similar to Catholic Charities, the reason these places are successful is because they take a church or synagogue or parish or whatever, and they say you have responsibility for taking one or two kids and it works.

 

We had the same thing in Virginia. We had the same thing in other states. Other than this -- I am a lawyer, but it wasn't a whole lot of legal stuff. But these agencies are really in peril, and they do need help beyond whether they take funds or are regulated by the state, if you want to give out some information about how we can pitch in and help some of this at the end, please do so.

 

I don't really have a legal argument. I know them all. We've been involved in them, and you're doing a great job. So I just want to leave it at that.

 

Lori Windham:  I really appreciate that background, thank you. And to the question about pitching in, we're always happy to hear from other foster care adoption agencies who are concerned about this and learn more. We've had some groups already who have been involved in supporting these cases by filing amicus briefs, highlighting the importance and the great work that these religious agencies are doing. So I certainly encourage anyone who's interested in that to reach out.

 

      It's interesting given some of the history here, these agencies have been doing this work for a long time. They've been able to serve very diverse children, very diverse families for a long time. And so this really is an unnecessary threat.

 

And I think it's important to know here, something I should have said upfront, which is that same-sex couples can foster and adopt in all 50 states. That's not what's on the line here. This is not a question of access in Philadelphia. You have 29 agencies who are providing these services, 28 of them provide services for same-sex and unmarried couples.

 

In Michigan, it's actually required under the law that if you cannot provide a certification for a particular couple right up front, you provide them with a referral so they can find an agency who can. So this is not a question of access, this is a question of whether the government can require these agencies to either follow the government's new policies or close their doors.

 

Wesley Hodges:  Very good. Second caller of the day, you are up.

 

Caller 2:  Thank you for the presentation, question regarding recent developments in the regulatory realm. Recently, the -- in fact, in the beginning of November, the Trump administration took definite steps to roll back some regulations imposed by the Obama Health and Human Services regarding the funding for the use of funding, HHS funding, for adoption or foster services.

 

      And in Pennsylvania, that was in part used as a basis for the Wolf administration to declare that there is a requirement for providers or participants for this one program to commit to non-discrimination on the basis of sexual orientation and gender identity.

 

      I guess my question is do you see or anticipate a positive impact of the Trump administration HHS's latest notice of proposed rulemaking? And then I guess the second question would be do you anticipate or are you in any way seeking to solicit support from the Office of Civil Rights within HHS for persuasive support or amicus support?

 

Lori Windham:  Thank you so much. That's a great question. I'm a little bit limited in what I can say on this since we are in litigation that involves federal HHS, but I'm happy to give a little bit of more background on that that's very helpful.

 

      So there was a regulation that was pushed through in December of 2016, which placed some additional non-discrimination requirements and tied those to funding for child welfare. As a result, the State of Michigan, then the current administration picked that up and said well, we have to change our rules. We have to change our policy and crack down on these religious providers because otherwise, significant funding is going to be at risk.

 

      And so when we sued the State of Michigan in Buck v. Gordon, we also sued HHS to ensure that St. Vincent would be protected and that the threat of loss of federal funding could not be used to restrict their First Amendment rights. And as a result, the federal court did enjoin HHS and the administration from taking any adverse action as a result of Michigan complying with this court order and protecting St. Vincent's religious freedom.

 

      And so we have that injunction in place now. I'm aware of the federal NPRM. While I am glad to see the federal government paying attention to this and understanding that this is a problem, it is only at the initial stage of a rulemaking. And so the problematic rule is still in place and is still creating risks for religious foster and adoption agencies while that process proceeds.

 

      With regard to the note on Pennsylvania and the Wolf administration, the City of Philadelphia has not relied on the federal regulation as a basis for its actions. I think I could fairly say that they would be happy to penalize Catholic Social Services, obviously not, I don't know if I should say happy, but they have certainly been willing to penalize Catholic Social Services whether they feel there's threat of federal funding or not. 

 

      And so even if this regulation were to be changed and made better and more protective for religious agencies, there are risks from state and local governments that are not going to go away.

 

Wesley Hodges:  Very good. Next caller, you are up.

 

John Hansen(sp):  Good afternoon. Thank you for your presentation. My name is John Hansen from the New England Chapter. I'm curious whether within the legal arguments that in the various cases that you described, you've invoked the strategy that these laws that are adverse to your efforts or interests have a disparate impact on religious persons and organizations. Can you just -- and I apologize if you've addressed this because I did tune in a little bit late. So that’s my question: disparate impact.

 

Lori Windham:  Certainly, and that's a really interesting question. What we have focused on here is on whether the laws and policies that are being enforced are neutral and generally applicable, since that is what the operative question is under the Free Exercise Clause. And so there are some [inaudible 29:32] from disparate impact analysis. Cases tend to get complicated pretty quickly because you have different laws and policies that are at issue.

 

      Sometimes you have things that are tailored to and specific to the foster care and adoption context, like we've seen in Michigan where there's a very detailed policy that was adopted that was really specific about what foster and adoption agencies were expected to do. And in other cases, you have broader non-discrimination laws in an attempt to enforce those in a way where they had not previously been enforced.

 

That was the case in Philadelphia where the city has actually really struggled to articulate what law it is they think Catholic Social Services is violating. They had actually pointed to a public accommodations law, which is a really poor fit in the foster care and adoption context because it's not a public accommodation like a hotel room or a coffee shop or a train. You're actually involved in very sensitive explorations of someone's personal life and family life and very sensitive decisions about what family is best for which child.

 

      And so there have been some attempts to use that. There have then been attempts to try and write something that is very specific to targeting this religious exercise or Catholic Social Services. And so all that to say that the focus here has really been on what are the policies? Have they been neutrally enforced? Have they been enforced across the board? And are they really neutral long-standing policies or are they something that has been designed to target a particular religious exercise? And that's where a lot of the legal attention in these cases has been so far.

 

Wesley Hodges:  While we wait for anymore audience questions, Lori, is there any other part of the cases that you'd like to jump in on before we end today?

 

Lori Windham:  Just one thing to go into a little bit more detail about the legal claims. I mentioned the free exercise claims and the fact that you have religious targeting. The Free Exercise Clause, the Supreme Court has said back in Employment Division v. Smith that neutral and generally applicable laws only have to pass rational basis scrutiny. So basically, the governments have a pretty free hand in restricting religious exercise, if they're doing it pursuant to something that's neutral and generally applicable.

 

      And so, so many of these cases end up being arguments about whether a law is targeted, whether a law is applied across the board, whether the law is really falling more heavily on and singling out religious exercise. One thing that we have asked the Supreme Court to do, and there is indication the Supreme Court may be willing to do, is to revisit Smith and to see whether the balance needs to be set in a way that makes the Free Exercise Clause more consistent with other First Amendment rights where you don’t have to prove the high bar in order to vindicate your rights and have those protected.

 

      So I think that that is an issue that is really lurking behind a lot of these problems. Because if you have a standard that recognizes free exercise as an important right, as a right that governments must watch carefully before they restrict, then I think it becomes easier to resolve a whole host of free exercise cases that arise in different context. So that's an important issue that's potentially before the Supreme Court here.

 

      The other thing I haven't mentioned -- talked about much is the free speech aspect of these cases. I know some people look at these cases and think well, why is this a free speech case? Because you actually are engaged in a lot of speech when you are making licensing recommendations. And when you are doing home studies, agencies are actually required to fill out these very detailed, multi-page forms where they give their opinions on a number of different issues surrounding someone's home and family life and, ultimately, to make certifications about the relationships in the home.

 

      And so this is where you end up with an issue of speech and an issue of compelled speech if you're requiring an organization to make these certifications and to make these written findings in a way that is inconsistent with their religious beliefs. And so that is why Speech Clause ends up playing a really interesting role in these cases.

 

Wesley Hodges:  Thank you, Lori. We do have several more questions from the audience. I count three. Next caller, you are up.

 

Caller 4:  Thank you for the presentation. As I understand, the cases that you're dealing with—and I also joined a little late, I apologize—they're brought by the religious affiliated service provider on First Amendment free exercise or free speech grounds, but is there a body of law where the religious provider is on the other side of the case and is accused, along with the government, of violating the Establishment Clause by funding these religious entities? And is it the same kind of a claim so that it's going to be resolved -- I mean, both sets of claims are going to be resolved by the outcome of these free exercise and free speech claims as well as the Establishment Clause?

 

Lori Windham:  That's a good question, and Establishment Clause issues have been raised in these cases in different ways. They have been raised as dissents in the Fulton case and in the Buck case as well. And they have been raised in a couple of the other cases that I mentioned where you have Establishment Clause challenges saying the federal government actually cannot accommodate religion.

 

      And so there are Establishment Clause issues in these cases. They haven't really been at the forefront, at least yet. And I think the reason for that is the Establishment Clause arguments, they are really pretty weak. Under current Establishment Clause analysis, the courts look to what is the history of the Establishment Clause? What are the historical hallmarks of establishment? Accommodation of religion has long been recognized as something that is protected by the Constitution rather than being antithetical to it under the Free Exercise or the Establishment Clause.

 

      And also if you look to cases involving government funding, the question that courts have really focused on and the Supreme Court has focused on is whether there's a true system of private choice. And here, you do have a true system of private choice. In Philadelphia, you have 29 different providers – religious, non-religious, different religious backgrounds. All these agencies are free to participate in the system, and prospective families are free to go to and seek out any of these agencies.

 

      The same is true in Michigan where you have more than a dozen different agencies in Lansing alone and many more throughout the state with secular backgrounds, religious backgrounds of varying sorts. And so the systems the states have in place here involving funding truly are systems of true private choice where families have many options available to them.

 

      I think we will see and have seen Establishment Clause challenges. I think that those will ultimately be resolved in favor of the religious agencies and religious accommodation.

 

Wesley Hodges:  Very good. Next caller, you are up.

 

Caller 5:  Good afternoon. Have you been able to determine, in the Philadelphia case, the Fulton case, have you been able to determine the funding stream? What percentage of Philadelphia's money comes from city sources versus the percentage of state sources or the percentage of federal funds?

 

Lori Windham:  Certainly. I don't have those numbers in front of me. In these cases and other cases, there is a mix of different sources of funds. They're generally following the child. It's important to note that a lot of this funding is actually funding that goes to an agency and then the agency turns around and provides it to the families. The families receive a per diem for everyday that that child is in their care.

 

      So when we're talking about funding and numbers, it's important to realize a lot of this funding is not staying with an agency, that it's actually going -- I don't have specific break downs, but in Philadelphia, I would also note that Philadelphia has acted on its own and it has not relied on state or federal pressure as a reason for its actions.

 

Caller 5:  But you do believe that there's a good percentage of federal Title IV-E funding involved in Philadelphia?

 

Lori Windham:  I don't know the exact percentages, but there is a mix of funding.

 

Wesley Hodges:  Thank you. Here is our next caller.

 

Caller 6:  Hi, I'm a physician and I really enjoyed your talk. What if it turns out that the data becomes overwhelming that biblical education becomes better long-term for children and their addiction problems, and it turns out that fetuses have brainwaves at eight weeks? What if certain scientific data comes in that makes some of the laws contrary to the Welfare Clause in the Constitution? And I’m particularly concerned of the lack of scientific education of the justices to determine and make laws that relate to health matters when they don't seem to have certain neurological competencies.

 

      To just give you my background, I was the one who wrote -- [inaudible 38:48] she was brain dead. Even though I'm a pro-life person, I don't believe in keeping alive people that have no brain tissue. And that was a big debate on the floor, and you could see all the senators and judges not understanding science: that flatline person is dead. And that was just [inaudible 39:07] in Terri Schiavo. She did not have any brain activity and she was force-fed for 15 years.

 

      So science knowledge is debated, of course, but scientific data is accumulating that pediatric education requires moral education just like Hamilton and Washington wrote in the farewell address. So I don't see it possible to continue in the manner that we are, and hopefully, you can address some of those from a constitutional perspective.

 

Lori Windham:  Well, thanks for your comments. I think it certainly goes a bit beyond what I'm prepared to speak to today or the issues involved in this case. What this case is in particular, there has not been an argument with regard to scientific data on either side. It's really just been a concern over what powers the government has vis-à-vis these religious organizations and whether they're properly following their constitutional requirements and whether they have the power to require these religious agencies to violate their faith or shut their doors.

 

Caller 6:  Well, but if it turns out that religious agencies are promoting welfare and helping health and that there's health data that's sufficient, then doesn't judicial process have to alter its perspective if it's not good? You can't make laws that destroy life, otherwise, the Declaration of Independence is nullified.

 

Lori Windham:  Where these issues have -- I kind of would say issues, but where some issues regarding health and welfare have come up is within the strict scrutiny analysis in these cases. And we've been able to show that the work religious agencies is doing is beneficial. Basic knowledge that children benefit from being able to be placed in loving foster homes rather than in [inaudible 40:48] placements for most children. And so the benefit of having religious agencies who can support these families, who can recruit families, who can ensure that we have more loving homes for children is a benefit to the welfare of children and is one that ought to be continued.

 

Caller 6:  My last portion of that is do you believe that when the president of the United States puts his hand on the Bible, like George Washington, that the Constitution and the Bible are somehow linked in terms of a validation, meaning that religious freedom of interpretations have always been there. Jefferson took out the Miracles, Unitarians, Quakers, Presbyterians, but doesn't an oath to have any validity on the Bible now have to have a Bible that's valid of some value?

 

Lori Windham:  We have a long history of religious accommodation in the country, as you note, stretching all the way back to the Constitution and to the Framers, and so I hope that that's going to be honored going forward.

 

Wesley Hodges:  Seeing that there's no more questions in the queue and looking at the time, Lori, I'd like to turn it back to you to see if you have any thoughts you'd like to close on.

 

Lori Windham:  Well, I think we covered a lot here. I just want to thank everyone who's joined for your interest in this issue and for your thoughtful questions. You can always learn more at becketlaw.org and follow the progress of these cases. I expect that we're going to be hearing more about these issues in the near future.

 

Wesley Hodges:  Well, Lori, thank you so much for an excellent presentation. And on behalf of The Federalist Society, I would like to thank Lori for the benefit of her valuable time and expertise. We welcome all listener feedback by email at [email protected]. Thank you all for joining us for the call. We are now adjourned.

 

Operator:  Thank you for listening. We hope you enjoyed this practice group podcast. For materials related to this podcast and other Federalist Society multimedia, please visit The Federalist Society's website at fedsoc.org/multimedia.

Operator:  Welcome to The Federalist Society's Practice Group Podcast. The following podcast, hosted by The Federalist Society's Religious Liberties Practice Group, was recorded on Tuesday, December 10, 2019, during a live teleforum conference call held exclusively for Federalist Society members.        

 

Wesley Hodges:  Welcome to The Federalist Society's teleforum conference call. This afternoon's topic is titled "Litigation Update on Religious Foster Care Agencies and the First Amendment." My name is Wesley Hodges, and I am the Associate Director of Practice Groups at The Federalist Society.

 

      As always, please note that all expressions of opinion are those of the expert on today's call.

 

      Today we are very fortunate to have with us Ms. Lori Windham, who is Senior Counsel at the Becket Fund for Religious Liberty. After our speaker gives her opening remarks, we will have time for your questions, so please keep in mind what you would like to ask.

 

Thank you very much for sharing with us today. Lori, the floor is yours.

 

Lori Windham:  Thank you so much, and thanks for having me on today. I'm really excited to talk about these cases. There's been a lot of active litigation on this issue over the last couple of years. And now, this issue may be heading to the Supreme Court.

 

      So I want to talk a little bit starting off with talking about Fulton v. City of Philadelphia, which is a case that's going to be conferenced at the Supreme Court this Friday and could be put on their docket for the spring. But first, I want to zoom out a little bit and talk about how we got here and how this issue has developed.

 

      So nationwide, we have a foster care crisis. We have over 600,000 children who are in foster care in any given year. Thousands of those children are going to be up for adoption. These numbers have only grown worse as the opioid epidemic has taken hold and more children have to be separated from their families.

 

      When parents are unable to care for a child and the child has to enter foster care, there are different processes that are put in place. The system varies a little bit from state to state, but the commonality is the children are in the care of the state. And the state then works with diverse providers to ensure that those children can find a home and a family.

 

      For many children, their goal is reunification, to go back to their birth parents and to be able to reunify those families. However, in some cases that's not possible, and so these children who are in the child welfare system will then be put up for adoption.

 

      When a child enters the system, they are generally placed in a loving foster home. The goal for most children is to have them placed with a foster family. There are other options out there such as institutions and group homes. Generally, by law, the preference is to have children not placed in those institutions but actually placed with a foster family. In order to make that happen, it's imperative that cities and states can find more families who are willing to join the foster care system and who are willing to open their homes to these children.

 

      This is hard work. This is heartbreaking work, and many foster parents drop out each year because they either have adopted children and their homes are full or it's simply become too difficult and so they need to go ahead and move on to other things.

 

      Historically, cities and states have relied on private foster and adoption agencies to recruit families to come in and fill this gap. If you look back at the history of child welfare in the United States, generally, religious and private organizations who are doing this, say, a century ago, they were out there opening up orphanages, helping find homes for children who were not able to remain with their parents, and doing this work.

 

      Over the course of the 20th century, foster care became a function of the state and became something that was run and regulated by state but still in conjunction with private agencies and religious agencies. And that's how we arrive at the system we have now, where you have private agencies who have been doing this work longer than the government has and have been doing it very well and want to continue that work.

 

      Over the last several years, we have seen an increase in conflicts between religious agencies and state and local governments, because those religious agencies have beliefs about marriage that depart from the definitions of marriage that have been adopted by the state and local governments that they partner with. And so we have seen serial closures of religious agencies across the country. This has happened in Boston and San Francisco, here in Washington, D.C., the entire State of Illinois, Buffalo, New York, just last year, and other places as well.

 

What happens is if states begin to insist that private foster and adoption agencies adopt the state's definition of marriage and provide written, home-studied certifications for couples who difference of marriage and who's relationship is different than the sincere religious belief of the agency, then those agencies have not been able to make those written certifications, and they're put to a very difficult choice. Do they say something and do something that violates their sincere beliefs or do they close their doors?

 

And then again and again, these agencies have been forced to close their doors. In reaction to that, several states have actually passed laws to specifically protect religious foster and adoption agencies, and I'm going to come back to those in a little bit. But I want to from that broader picture now zoom in and talk about Philadelphia.

 

The Archdiocese of Philadelphia has been providing care for orphans, care for foster and adoptive children for over a century. They were originally doing this as far back as the yellow fever epidemic, helping to find homes for children who were orphaned during that time. They had had religious sisters who were involved in finding homes for children whose parents were no longer able to care for them. And this goes back many years.

 

Today that work is carried out by Catholic Social Services of Philadelphia. They have a thriving or have had a thriving foster care ministry. What they do is they recruit foster parents. They support and help walk with them through this very difficult process. They've had great success in doing this, and I think that their foster parents and children are some of the best examples.

 

One of their great examples, Mrs. Paul, Cecilia Paul, was a foster parent for 46 years and fostered 133 children in her time working with Catholic Social Services. She adopted a number of them as well and was doing this work well into her -- sadly, Mrs. Paul passed away just last year, and it's been a big loss to her children, her grandchildren, and those who've depended on her.

 

Sharonell Fulton is another foster mother who's been working with Catholic Social Services for 25 years. In those 25 years, she has fostered 40 children. Another foster mom who has not been doing this quite as long but is also part of this case and has been impacted by this is Toni Simms-Bush. Toni is a social worker who's filled a number of different roles within the child welfare system. And after many years of seeing how the system worked, she decided to become part of that herself, and she fostered and adopted two young brothers and has found real joy in welcoming them into her home.

 

The way that foster cares works in Philadelphia, which from what I've seen is pretty common, is that families work with a particular agency. That agency helps them get their license, does all their background investigation, does what's called a home study, which is a very detailed and intensive look at the family's life and their suitability to become foster or later adoptive parents.

 

Once those families have worked with their agency and been able to obtain a state license, they continue to work with that agency and any foster children who are placed in their home are going to be overseen by that agency. And the agencies work really hard to partner with their families to provide them the support they need to ensure that their children have the kind of help that they need at this very difficult time in their lives.

 

And again and again, as this case has gone forward, we have heard the stories of how Catholic Social Services has really done an exceptional job of partnering with these parents, of helping them to find the support and the care and the resources and the training that they need to help these children.

 

So we go back to about 18 months ago, in March of 2018, Catholic Social Services was providing the same services in the same way that it had for many years, and there was a newspaper article. The Philadelphia Inquirer wrote an article about a same-sex couple who had approached a different agency and had been referred elsewhere because the agency could not provide a certification for a same-sex couple. In the course of reporting that article, the reporter reached out to the Archdiocese of Philadelphia and Catholic Social Services. They confirmed their long-standing policy, which is that if they had been approached by a same-sex or unmarried couple, they would refer them to another agency where they could be able to receive that home study certification.

 

It's important to note here, they had never even had a same-sex couple approach them and ask them to provide that certification for them. And yet, because they were quoted in this article in The Philadelphia Inquirer, this became a huge story in Philadelphia and it really kicked off a firestorm.

 

The city council passed a resolution condemning what they call, "discrimination under the guise of religious freedom." The head of the Department of Social Services who was in charge of foster care called the head of Catholic Charities into her office. She also investigated agencies, only religious agencies and one secular agency, to see what their policies were regarding same-sex couples. The mayor had strongly criticized the Archdiocese over a number of things.

 

And shortly after all this happened, Catholic Social Services was informed that they would no longer be able to take in new foster children. What this meant was that families like Sharonell's, like Mrs. Paul's, like Toni's weren't able to take in any new kids simply because they worked with Catholic Social Services, and the City of Philadelphia disagreed with Catholic Social Service's religious beliefs.

 

And so these families, even though they had been valuable and an important part of the city's foster care system, are no longer able to welcome new children into their homes. This all happened just a few days after Philadelphia had announced an urgent call to recruit 300 more foster families into the system just to be able to meet the needs that they currently had.

 

Nevertheless, they shut down foster care intake, and I'm sad to say that that shutdown has continued until today. Shortly after that happened, Becket filed a lawsuit on behalf of Sharonell and Toni and Mrs. Paul and Catholic Social Services. We asked for a preliminary injunction saying that this was a violation of the Free Exercise Clause, of the Free Speech Clause, and also of state law.

 

We did not receive the preliminary injunction. We did have a three-day evidentiary hearing. It was one of the longest and largest PI records of any preliminary injunction motion that I had ever been a part of. But after an extensive record and a three-day hearing, the district court denied the preliminary injunction finding no violation of the Free Exercise or Free Speech Clauses.

 

We appealed this to the circuit. While that appeal was going on, we also filed an emergency motion with the Third Circuit, which was denied, and then with the Supreme Court. And I note all this background because it's important to note that when we filed that emergency motion, it was before the eight-member court. This was before Justice Kavanaugh was confirmed, and three justices, Justices Thomas, Alito, and Gorsuch, indicated that they would have given us that relief and would have granted that emergency motion.

 

So this case has already had some attention from the Supreme Court. But the eight-member court did not grant the motion, so we went back down. We had the appeal before the Third Circuit. The Third Circuit, again, ruled against Catholic Social Services saying that Philadelphia had acted pursuant to a neutral and generally applicable law, that this was not a free speech violation, that this was all governed by the contract, and also ruled against us on the other state law claims.

 

And so now we have petitioned the Supreme Court to take this case. The questions that we have presented are, first of all, a question on which there is a circuit split: how do you interpret the Free Exercise Clause? What sort of evidence do you need to put forward in order to show that a law is not neutral and generally applicable? And then also, another question, which has gotten a lot of attention in recent months, is whether the current system, whether the Employment Division v. Smith case that governs free exercise law needs to be revisited.

 

Four justices have indicated that they're interested in revisiting Smith, and so we put that question before the Court as to whether this is an issue that they want to revisit now in this case. Third, we also asked the Court to consider the free speech arguments in the case since there is a split here both with the Fifth Circuit and also departure from governing Supreme Court precedent.

 

So that is the petition that is going to be considered at conference this Friday for the first time. But I also wanted to touch on a couple of the other cases that are going on. What we've seen as these cases have developed is that this is an issue that is going to continue to reoccur. Problems will continue to happen because of the way these cases arise and because of the way that the foster and adoption system works, these cases tend to involve a lot of emergency motions and urgent practice.

 

You're talking about ministries here who are moving quickly to serve kids in need. You're talking about state systems which are generally overtaxed and need all the help they can get. And you're talking about agencies who are really at risk of closure if they have to go very long without being able to provide foster care or adoption services.

 

And it's important to note here that when we're talking about these cases, state governments and local governments are the ones who have custody of the children. They decide where the children get placed. And so if you are excluded from working with your state or local government, you are excluded from the child welfare system full stop. And so if these agencies are excluded for very long, inevitably, they will have to close their doors, which is why a lot of these cases tend to arise on preliminary injunctions -- tend to go up on preliminary injunctions and urgent motions.

 

So one other case that Becket is also involved in is Buck v. Gordon. This is a case in Michigan. Michigan is one of the states that adopted a law specifically designed to protect child welfare providers and to protect these agencies and allow them to continue to work and follow their sincere religious beliefs.

 

That had been challenged in a prior lawsuit. The State of Michigan originally had defended its law, but after the current attorney general was elected, Michigan no longer is defending that law. They have adopted what I would characterize as an absurd interpretation of the law that renders it meaningless and are threatening to now go after and start closing down religious child welfare agencies who are not following the state's new policy.

 

So St. Vincent Catholic Charities is an adoption and foster care agency that has been active in Michigan for more than 40 years. They've been partnering with families to help children find homes. Some of the families they've partnered with have also been part of this lawsuit.

 

That includes Shamber Flore, who is a young woman who has an amazing story of overcoming abuse and becoming a thriving young adult thanks to the foster family and adoptive family she found through St. Vincent. This is a family who said they would not have been able to continue their journey of fostering and adopting if it were not for the excellent support they received from St. Vincent Catholic Charities.

 

They're also joined by Chad and Melissa Buck. Chad and Melissa are a young couple who experienced infertility, decided to adopt. They decided to adopt a child from the child welfare system, and they got a call from St. Vincent saying we have three children, siblings, will you take them in? And they said yes. And they adopted those three siblings. Later on, another sibling came into the system, and they adopted that sibling as well. And then a fifth child came into the system. So they went from, in a very short time period, went from having no children to having five.

 

All of their children have various special needs. This has been a really difficult and intense journey, and yet, it's also been one that has created a lot of joy for their children and their family. And now Chad and Melissa are great advocates for St. Vincent and great advocates for foster care and adoption. They work alongside St. Vincent to recruit more families in because they believe this is such a blessing and they want more people to be a part of it.

 

St. Vincent faced closure under Michigan's new policy, and so they went to court together with the Bucks and Ms. Flore and were able to win a preliminary injunction under the Free Exercise Clause. The court determined that the state had impermissibly targeted them and was not acting under a neutral and generally applicable law under the Free Exercise Clause. And so, therefore, they were able to receive a preliminary injunction.

 

That case is currently on appeal [in the Sixth] Circuit. The State of Michigan tried to get an emergency stay pending appeal, basically to put the injunction on hold and allow them to move forward with penalizing St. Vincent while this case proceeds. The Sixth Circuit recently denied that. And so St. Vincent retained its preliminary injunction, retained the protection that it needed to keep its doors open. And that case is currently proceeding before the Sixth Circuit.

 

I want to flag a couple other cases going on too, so I'm not going to go into any great detail because I'm no expert. But just so you have a lay of the land, there's also a pending Second Circuit case. This is the New Hope case involving a private adoption agency, which is not a state contractor but is regulated by the state. New York has threatened to shut them down, again, over what it claims are violations or potential violations of its non-discrimination laws or regulations.

 

That case was pending before the Second Circuit, and there was some sort of threat of imminent enforcement. And so the Second Circuit actually granted an emergency injunction pending appeal for New Hope. And then they scheduled expedited oral argument, I think it was about two weeks, between when they granted the injunction and the oral argument was, happened very quickly. And so we're expecting to hear something from the Second Circuit on this very soon.

 

I want to mention another set of cases which overlaps with this a bit, and some of you may have heard about. There's the Miracle Hill case in South Carolina. There's Marouf v. Azar in D.C., and also this gets into the Buck case and some others. These cases involve federal regulations that are non-discrimination regulations for foster and adoption for those engaged in child welfare work.

 

And there have been challenges to those on both sides, both from religious agencies who've said that these federal regulations are going too far and threatening religious agencies. That was the case in the Buck case in Michigan where the court also enjoined the federal government. And that has been the claim in other cases as well.

 

I would also note that there have been challenges from the other side where advocacy groups have said that it is wrong for the federal government to accommodate. That in a sense, it's not doing enough. It needs to enforce and not create exemptions from these regulations. And so those cases are pending as well.

 

So this is an area of the law that has been in really active litigation for the last couple of years, and I expect that that is going to continue until the Supreme Court steps in. And I think it's probably going to continue, unfortunately, with a lot of urgent and emergency motions practice until we get some answers here.

 

To end where I began, this is a problem that has been brewing for quite a while now. For a number of years, since these shut down, they didn't challenge this in court, and so we saw a lot of losses to the foster and adoption system. Now, we have seen some really good actions in terms of states which have taken the initiative and passed laws to make sure that these agencies are protected and with agencies who are standing up and challenging these attempts to force them to close their doors.

 

And so I'm encouraged by where these cases are at and where they're going, so hopeful that we will see a Supreme Court decision on this soon. With that, I know there's a lot of data here and a lot to unpack, so I'm happy to take any questions you have.

 

Wesley Hodges:  Thank you so much, Lori. Here's our first caller.

 

Caller 1:  Oh, hi, yeah. Thank you very much for a great presentation. For the sake of what used to be my client and I used to be on the board of directors over, probably won't identify myself or the agency. But suffice it to say that 20-some years ago, when the 1994 legislation came around to redo adoption and foster care in order to take away the racial prejudices and biases that were put in place, used to be extremely difficult to foster or adopt a child from another race, particularly if you were, for example, a white couple trying to adopt an African-American child or another type of child, you had to go past all these sort of racial tests, sensitivity tests.

 

And the 1994 Congress upended that, and we did a lot of work on that front. And at that time, we saw the same thing coming down the road from the same type of people that were going to start challenging exactly what's happening now. And as far as a couple of anecdotes, we were -- actually, Massachusetts, back in the ‘90s, passed a law saying the same thing, that if you discriminated based upon religion or sexual preference, you weren't allowed to provide services in the state. We said, "Okay, thank you. We're not going to give up our religious tenets or our stuff for that, so thank you very much. We'll leave Massachusetts."

 

Within two years, they came begging back saying, "We can't place the kids. We have a crisis in foster care. What do you want?" And you're probably familiar with this, they changed the law. Then we came back, and very similar to Catholic Charities, the reason these places are successful is because they take a church or synagogue or parish or whatever, and they say you have responsibility for taking one or two kids and it works.

 

We had the same thing in Virginia. We had the same thing in other states. Other than this -- I am a lawyer, but it wasn't a whole lot of legal stuff. But these agencies are really in peril, and they do need help beyond whether they take funds or are regulated by the state, if you want to give out some information about how we can pitch in and help some of this at the end, please do so.

 

I don't really have a legal argument. I know them all. We've been involved in them, and you're doing a great job. So I just want to leave it at that.

 

Lori Windham:  I really appreciate that background, thank you. And to the question about pitching in, we're always happy to hear from other foster care adoption agencies who are concerned about this and learn more. We've had some groups already who have been involved in supporting these cases by filing amicus briefs, highlighting the importance and the great work that these religious agencies are doing. So I certainly encourage anyone who's interested in that to reach out.

 

      It's interesting given some of the history here, these agencies have been doing this work for a long time. They've been able to serve very diverse children, very diverse families for a long time. And so this really is an unnecessary threat.

 

And I think it's important to know here, something I should have said upfront, which is that same-sex couples can foster and adopt in all 50 states. That's not what's on the line here. This is not a question of access in Philadelphia. You have 29 agencies who are providing these services, 28 of them provide services for same-sex and unmarried couples.

 

In Michigan, it's actually required under the law that if you cannot provide a certification for a particular couple right up front, you provide them with a referral so they can find an agency who can. So this is not a question of access, this is a question of whether the government can require these agencies to either follow the government's new policies or close their doors.

 

Wesley Hodges:  Very good. Second caller of the day, you are up.

 

Caller 2:  Thank you for the presentation, question regarding recent developments in the regulatory realm. Recently, the -- in fact, in the beginning of November, the Trump administration took definite steps to roll back some regulations imposed by the Obama Health and Human Services regarding the funding for the use of funding, HHS funding, for adoption or foster services.

 

      And in Pennsylvania, that was in part used as a basis for the Wolf administration to declare that there is a requirement for providers or participants for this one program to commit to non-discrimination on the basis of sexual orientation and gender identity.

 

      I guess my question is do you see or anticipate a positive impact of the Trump administration HHS's latest notice of proposed rulemaking? And then I guess the second question would be do you anticipate or are you in any way seeking to solicit support from the Office of Civil Rights within HHS for persuasive support or amicus support?

 

Lori Windham:  Thank you so much. That's a great question. I'm a little bit limited in what I can say on this since we are in litigation that involves federal HHS, but I'm happy to give a little bit of more background on that that's very helpful.

 

      So there was a regulation that was pushed through in December of 2016, which placed some additional non-discrimination requirements and tied those to funding for child welfare. As a result, the State of Michigan, then the current administration picked that up and said well, we have to change our rules. We have to change our policy and crack down on these religious providers because otherwise, significant funding is going to be at risk.

 

      And so when we sued the State of Michigan in Buck v. Gordon, we also sued HHS to ensure that St. Vincent would be protected and that the threat of loss of federal funding could not be used to restrict their First Amendment rights. And as a result, the federal court did enjoin HHS and the administration from taking any adverse action as a result of Michigan complying with this court order and protecting St. Vincent's religious freedom.

 

      And so we have that injunction in place now. I'm aware of the federal NPRM. While I am glad to see the federal government paying attention to this and understanding that this is a problem, it is only at the initial stage of a rulemaking. And so the problematic rule is still in place and is still creating risks for religious foster and adoption agencies while that process proceeds.

 

      With regard to the note on Pennsylvania and the Wolf administration, the City of Philadelphia has not relied on the federal regulation as a basis for its actions. I think I could fairly say that they would be happy to penalize Catholic Social Services, obviously not, I don't know if I should say happy, but they have certainly been willing to penalize Catholic Social Services whether they feel there's threat of federal funding or not. 

 

      And so even if this regulation were to be changed and made better and more protective for religious agencies, there are risks from state and local governments that are not going to go away.

 

Wesley Hodges:  Very good. Next caller, you are up.

 

John Hansen(sp):  Good afternoon. Thank you for your presentation. My name is John Hansen from the New England Chapter. I'm curious whether within the legal arguments that in the various cases that you described, you've invoked the strategy that these laws that are adverse to your efforts or interests have a disparate impact on religious persons and organizations. Can you just -- and I apologize if you've addressed this because I did tune in a little bit late. So that’s my question: disparate impact.

 

Lori Windham:  Certainly, and that's a really interesting question. What we have focused on here is on whether the laws and policies that are being enforced are neutral and generally applicable, since that is what the operative question is under the Free Exercise Clause. And so there are some [inaudible 29:32] from disparate impact analysis. Cases tend to get complicated pretty quickly because you have different laws and policies that are at issue.

 

      Sometimes you have things that are tailored to and specific to the foster care and adoption context, like we've seen in Michigan where there's a very detailed policy that was adopted that was really specific about what foster and adoption agencies were expected to do. And in other cases, you have broader non-discrimination laws in an attempt to enforce those in a way where they had not previously been enforced.

 

That was the case in Philadelphia where the city has actually really struggled to articulate what law it is they think Catholic Social Services is violating. They had actually pointed to a public accommodations law, which is a really poor fit in the foster care and adoption context because it's not a public accommodation like a hotel room or a coffee shop or a train. You're actually involved in very sensitive explorations of someone's personal life and family life and very sensitive decisions about what family is best for which child.

 

      And so there have been some attempts to use that. There have then been attempts to try and write something that is very specific to targeting this religious exercise or Catholic Social Services. And so all that to say that the focus here has really been on what are the policies? Have they been neutrally enforced? Have they been enforced across the board? And are they really neutral long-standing policies or are they something that has been designed to target a particular religious exercise? And that's where a lot of the legal attention in these cases has been so far.

 

Wesley Hodges:  While we wait for anymore audience questions, Lori, is there any other part of the cases that you'd like to jump in on before we end today?

 

Lori Windham:  Just one thing to go into a little bit more detail about the legal claims. I mentioned the free exercise claims and the fact that you have religious targeting. The Free Exercise Clause, the Supreme Court has said back in Employment Division v. Smith that neutral and generally applicable laws only have to pass rational basis scrutiny. So basically, the governments have a pretty free hand in restricting religious exercise, if they're doing it pursuant to something that's neutral and generally applicable.

 

      And so, so many of these cases end up being arguments about whether a law is targeted, whether a law is applied across the board, whether the law is really falling more heavily on and singling out religious exercise. One thing that we have asked the Supreme Court to do, and there is indication the Supreme Court may be willing to do, is to revisit Smith and to see whether the balance needs to be set in a way that makes the Free Exercise Clause more consistent with other First Amendment rights where you don’t have to prove the high bar in order to vindicate your rights and have those protected.

 

      So I think that that is an issue that is really lurking behind a lot of these problems. Because if you have a standard that recognizes free exercise as an important right, as a right that governments must watch carefully before they restrict, then I think it becomes easier to resolve a whole host of free exercise cases that arise in different context. So that's an important issue that's potentially before the Supreme Court here.

 

      The other thing I haven't mentioned -- talked about much is the free speech aspect of these cases. I know some people look at these cases and think well, why is this a free speech case? Because you actually are engaged in a lot of speech when you are making licensing recommendations. And when you are doing home studies, agencies are actually required to fill out these very detailed, multi-page forms where they give their opinions on a number of different issues surrounding someone's home and family life and, ultimately, to make certifications about the relationships in the home.

 

      And so this is where you end up with an issue of speech and an issue of compelled speech if you're requiring an organization to make these certifications and to make these written findings in a way that is inconsistent with their religious beliefs. And so that is why Speech Clause ends up playing a really interesting role in these cases.

 

Wesley Hodges:  Thank you, Lori. We do have several more questions from the audience. I count three. Next caller, you are up.

 

Caller 4:  Thank you for the presentation. As I understand, the cases that you're dealing with—and I also joined a little late, I apologize—they're brought by the religious affiliated service provider on First Amendment free exercise or free speech grounds, but is there a body of law where the religious provider is on the other side of the case and is accused, along with the government, of violating the Establishment Clause by funding these religious entities? And is it the same kind of a claim so that it's going to be resolved -- I mean, both sets of claims are going to be resolved by the outcome of these free exercise and free speech claims as well as the Establishment Clause?

 

Lori Windham:  That's a good question, and Establishment Clause issues have been raised in these cases in different ways. They have been raised as dissents in the Fulton case and in the Buck case as well. And they have been raised in a couple of the other cases that I mentioned where you have Establishment Clause challenges saying the federal government actually cannot accommodate religion.

 

      And so there are Establishment Clause issues in these cases. They haven't really been at the forefront, at least yet. And I think the reason for that is the Establishment Clause arguments, they are really pretty weak. Under current Establishment Clause analysis, the courts look to what is the history of the Establishment Clause? What are the historical hallmarks of establishment? Accommodation of religion has long been recognized as something that is protected by the Constitution rather than being antithetical to it under the Free Exercise or the Establishment Clause.

 

      And also if you look to cases involving government funding, the question that courts have really focused on and the Supreme Court has focused on is whether there's a true system of private choice. And here, you do have a true system of private choice. In Philadelphia, you have 29 different providers – religious, non-religious, different religious backgrounds. All these agencies are free to participate in the system, and prospective families are free to go to and seek out any of these agencies.

 

      The same is true in Michigan where you have more than a dozen different agencies in Lansing alone and many more throughout the state with secular backgrounds, religious backgrounds of varying sorts. And so the systems the states have in place here involving funding truly are systems of true private choice where families have many options available to them.

 

      I think we will see and have seen Establishment Clause challenges. I think that those will ultimately be resolved in favor of the religious agencies and religious accommodation.

 

Wesley Hodges:  Very good. Next caller, you are up.

 

Caller 5:  Good afternoon. Have you been able to determine, in the Philadelphia case, the Fulton case, have you been able to determine the funding stream? What percentage of Philadelphia's money comes from city sources versus the percentage of state sources or the percentage of federal funds?

 

Lori Windham:  Certainly. I don't have those numbers in front of me. In these cases and other cases, there is a mix of different sources of funds. They're generally following the child. It's important to note that a lot of this funding is actually funding that goes to an agency and then the agency turns around and provides it to the families. The families receive a per diem for everyday that that child is in their care.

 

      So when we're talking about funding and numbers, it's important to realize a lot of this funding is not staying with an agency, that it's actually going -- I don't have specific break downs, but in Philadelphia, I would also note that Philadelphia has acted on its own and it has not relied on state or federal pressure as a reason for its actions.

 

Caller 5:  But you do believe that there's a good percentage of federal Title IV-E funding involved in Philadelphia?

 

Lori Windham:  I don't know the exact percentages, but there is a mix of funding.

 

Wesley Hodges:  Thank you. Here is our next caller.

 

Caller 6:  Hi, I'm a physician and I really enjoyed your talk. What if it turns out that the data becomes overwhelming that biblical education becomes better long-term for children and their addiction problems, and it turns out that fetuses have brainwaves at eight weeks? What if certain scientific data comes in that makes some of the laws contrary to the Welfare Clause in the Constitution? And I’m particularly concerned of the lack of scientific education of the justices to determine and make laws that relate to health matters when they don't seem to have certain neurological competencies.

 

      To just give you my background, I was the one who wrote -- [inaudible 38:48] she was brain dead. Even though I'm a pro-life person, I don't believe in keeping alive people that have no brain tissue. And that was a big debate on the floor, and you could see all the senators and judges not understanding science: that flatline person is dead. And that was just [inaudible 39:07] in Terri Schiavo. She did not have any brain activity and she was force-fed for 15 years.

 

      So science knowledge is debated, of course, but scientific data is accumulating that pediatric education requires moral education just like Hamilton and Washington wrote in the farewell address. So I don't see it possible to continue in the manner that we are, and hopefully, you can address some of those from a constitutional perspective.

 

Lori Windham:  Well, thanks for your comments. I think it certainly goes a bit beyond what I'm prepared to speak to today or the issues involved in this case. What this case is in particular, there has not been an argument with regard to scientific data on either side. It's really just been a concern over what powers the government has vis-à-vis these religious organizations and whether they're properly following their constitutional requirements and whether they have the power to require these religious agencies to violate their faith or shut their doors.

 

Caller 6:  Well, but if it turns out that religious agencies are promoting welfare and helping health and that there's health data that's sufficient, then doesn't judicial process have to alter its perspective if it's not good? You can't make laws that destroy life, otherwise, the Declaration of Independence is nullified.

 

Lori Windham:  Where these issues have -- I kind of would say issues, but where some issues regarding health and welfare have come up is within the strict scrutiny analysis in these cases. And we've been able to show that the work religious agencies is doing is beneficial. Basic knowledge that children benefit from being able to be placed in loving foster homes rather than in [inaudible 40:48] placements for most children. And so the benefit of having religious agencies who can support these families, who can recruit families, who can ensure that we have more loving homes for children is a benefit to the welfare of children and is one that ought to be continued.

 

Caller 6:  My last portion of that is do you believe that when the president of the United States puts his hand on the Bible, like George Washington, that the Constitution and the Bible are somehow linked in terms of a validation, meaning that religious freedom of interpretations have always been there. Jefferson took out the Miracles, Unitarians, Quakers, Presbyterians, but doesn't an oath to have any validity on the Bible now have to have a Bible that's valid of some value?

 

Lori Windham:  We have a long history of religious accommodation in the country, as you note, stretching all the way back to the Constitution and to the Framers, and so I hope that that's going to be honored going forward.

 

Wesley Hodges:  Seeing that there's no more questions in the queue and looking at the time, Lori, I'd like to turn it back to you to see if you have any thoughts you'd like to close on.

 

Lori Windham:  Well, I think we covered a lot here. I just want to thank everyone who's joined for your interest in this issue and for your thoughtful questions. You can always learn more at becketlaw.org and follow the progress of these cases. I expect that we're going to be hearing more about these issues in the near future.

 

Wesley Hodges:  Well, Lori, thank you so much for an excellent presentation. And on behalf of The Federalist Society, I would like to thank Lori for the benefit of her valuable time and expertise. We welcome all listener feedback by email at [email protected]. Thank you all for joining us for the call. We are now adjourned.

 

Operator:  Thank you for listening. We hope you enjoyed this practice group podcast. For materials related to this podcast and other Federalist Society multimedia, please visit The Federalist Society's website at fedsoc.org/multimedia.