Courthouse Steps Oral Argument Teleforum: Fulton v. City of Philadelphia

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This teleforum reviews the November 4 oral argument in Fulton v. City of Philadelphia. In March 2018, Philadelphia’s Department of Health and Human Services stopped placing foster children with families certified and supported by Catholic Social Services because the agency, as an arm of the Catholic Church, has a sincere religious objection to endorsing same-sex or unmarried heterosexual relationships. Three foster families supported by Catholic Social Services sued, seeking to continue partnering with their chosen agency and challenging the city's decision on religious free exercise and free speech grounds. 

The issues before the Supreme Court involve the appropriate standard for a free-exercise claim, reconsideration of the Court's decision in Employment Division v. Smith, and the grounds on which a government can condition foster-care participation.

Mark Rienzi, president of The Becket Fund for Religious Liberty, joins us to discuss oral arguments. Becket is representing plaintiffs in this case.
 
Featuring: 
 
Mark L. Rienzi, President, The Becket Fund for Religious Liberty; Professor of Law and Co-Director of the Center for Religious Liberty, The Catholic University of America Columbus School of Law
 
 
This call is open to the public and press. Dial 888-752-3232 to be connected.
 

Event Transcript

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Dean Reuter:  Welcome to Teleforum, a podcast of The Federalist Society's practice groups. I’m Dean Reuter, Vice President, General Counsel, and Director of Practice Groups at The Federalist Society. For exclusive access to live recordings of practice group teleforum calls, become a Federalist Society member today at fedsoc.org.

 

 

Nick Marr:  Welcome to The Federalist Society's Teleforum conference call. This afternoon, we've got a special Courthouse Steps Oral Argument Teleforum on Fulton v. City of Philadelphia. Arguments were heard yesterday in this case. I'm Nick Marr, Assistant Director of Practice Groups here at The Federalist Society.

 

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

 

      We're very fortunate to have with us Mark Rienzi today to discuss oral arguments in this case. Mark is the President of The Becket Fund for Religious Liberty, who's representing one of the sides in this case, the adoption agency. So after Mark gives us an overview of the case and the oral argument, then we'll go to audience questions. So be thinking of those. Maybe you already have some, or as we go along, be thinking of those when we get to that portion of our call. Thanks very much for being with us here. Mark, the floor is yours.

 

Mark: Rienzi:  Terrific. Thanks Nick and thanks everybody for dialing in. Yesterday, the Supreme Court heard oral argument in Fulton v. City of Philadelphia. This is a case brought by three foster mothers: Sharonell Fulton, Toni Simms-Busch, and Cecelia Paul, although Ms. Paul passed away during the case.

 

      The three foster mothers and the Catholic foster agency that they worked with, Catholic Social Services, against the City of Philadelphia. The Case is over Philadelphia's decision to shut down all referrals of children to families that have been certified by Catholic Social Services.  This is something that the City did in 2018, even though the City has had, and still has, a backlog of foster children in need of homes.

 

      The City said it needed to stop referring children to Catholic Charities and it wouldn't contract with them any further because the City -- because the Catholic agency, if a same-sex couple or an unmarried heterosexual couple came to the agency asking for a home study and approval to be foster parents, the Catholic agency would simply refer them to a different agency, would say, we're not the best people to do that home study for you because we have Catholic religious beliefs about sex and marriage. But here are the other ones you can go to.

 

      Because the agency wanted to make that kind of referral, in 2018, Philadelphia took the draconian step of not only refusing to work with the agency anymore, but refusing to place children even in the homes of previously certified parents, like Ms. Fulton, Ms. Simms-Busch, and Ms. Paul.

 

      The petitioners lost the case in both the trial court and the Third Circuit Court of Appeals. Those courts ruled under Employment Division v. Smith that the Free Exercise Clause does not protect the agency or the foster mothers. They said that Philadelphia was just enforcing a neutral and generally applicable law and that Smith would be a dead letter if the Free Exercise Clause allowed protection for the foster agency and the foster mothers.

 

      The Supreme Court granted cert on a couple different issues. Principally, one, whether the City's treatment of the agency and the foster mothers violated the Free Exercise Clause. And secondly, whether the Court should revisit its decision in Employment Division v. Smith. There was also a compelled speech question that was granted on, but that didn't get much focus at the oral argument, so I'll focus on those two questions.

 

      The Justices heard argument for almost two hours yesterday on this case. First, they heard from Lori Windham, my colleague, who was arguing on behalf of the foster mothers and the foster agency. Our argument was as follows.

 

      First, that under any sensible reading of the Free Exercise Clause, it protects the right of a religious foster agency to continue helping foster children, children in need. That that is a long and historic religious exercise. It was actually happening from the Catholic Church in Philadelphia for at least 200 years, for many years before Philadelphia even got involved in the process. That Philadelphia did not have the right to come in, take over that area, and then kick out the religious practitioners who had been doing it previously, especially given the fact that Catholic Social Services has been doing this work for a long time, in accordance with its religious beliefs, and had never run into any problems that had never generated any complaints.

 

      The justices repeatedly circled back to the fact that there was no evidence of even a single gay couple that had come to Catholic Charities asking for this kind of home study. And so you had the situation where the City was asking the Catholic Charities, what is essentially a hypothetical question, what would you do if a gay couple wanted their home study done by the Catholic Church, which no gay couples had previously asked for. Catholic Charities said, well if that happens, we would just politely refer them to one of the other 30 agencies in the city. But that wasn't good enough for the City of Philadelphia.

 

      So the argument from the foster agency and the foster mothers was that kicking them out of the foster program violates their rights under the Free Exercise Clause. That argument was both presented under Employment Division v. Smith, but then coupled with an argument that the Court should also go ahead and get rid of Employment Division v. Smith. The argument that, even under Employment Division v. Smith, this violates the Free Exercise Clause is that Philadelphia doesn’t, and never has had a neutral and generally applicable law in place.

 

      There was no neutral and generally applicable law that required Catholic Charities to do these home studies for each and every applicant, or potential applicant, who came in the door. There was no obligation to do that. That wasn't the previous requirement. And Philadelphia has all sorts of exceptions to the Fair Practices Ordinance that it said it was applying. And those exceptions include the fact that, even though disability, and marital status, and race, and other aspects, other traits are considered protected classes under that Fair Practices Ordinance, Philadelphia allows and encourages, and at times itself, engages in discrimination on all of those bases.

 

      And just to give a couple of examples, in the state law that governs home certifications, one of the characteristics that must be considered, as a matter of state law, is disability, and particularly mental stability. Under Philadelphia's Fair Practices Ordinance, that wouldn't be permitted. But under state law, it must be done.

 

      Likewise, family status is something that when agencies are certifying a home as a good place to put children, they are supposed to give thought and attention to is the Fair Practices Ordinance governed, they wouldn't be able to do that. Philadelphia also acknowledged that it considers race when making placements, which of course, is something that the Fair Practices Ordinance generally wouldn't cover.

 

      As a threshold issue, all of those simply serve to confirm that the Fair Practices Ordinance never did and never was understood to cover foster care. Being certified to be a foster parent is not the equivalent of going to get a cup of coffee or a ticket on the train. It is, by definition, a process that is designed to treat people differently and require a lot of specialized and individualized decision making. That's the way Philadelphia had always done it.

 

      But in the Smith discussion, what these exceptions indicated is that Philadelphia doesn’t have an across-the-board-no-exceptions kind of policy that says you can't consider any of these traits. So the first argument was simply that, under Philadelphia's law, as Philadelphia itself describes it, there are these exceptions. Philadelphia had also told the Supreme Court, in an earlier filing, that they had a waiver and exemption committee who could create exceptions. And the very contract provision that Philadelphia relied on in its argument to say that Catholic Charities, by contract, couldn't make these referrals. That provision also allowed for individualized exemptions granted by the government.

 

      So under Employment Division v. Smith, the argument was, this is just not a neutral and generally applicable law. This has individualized exemptions. This has categorical exceptions. It's not generally applicable, and therefore, strict scrutiny must apply and particularly given that there are so many other agencies, and there's no indication that there were even any gay couples that wanted this service from the Catholic Church, the City couldn't come close to passing strict scrutiny.

 

      All of that discussion, though, also led to the second argument, which is that applying the standards of Employment Division v. Smith, and this is something that I think much of the two hours of argument actually confirmed. Applying the standards of Employment Division v. Smith is not nearly as simple and straight forward a test as Justice Scalia's 1990 opinion in Smith suggested it might. A lot of the reason for Smith, at least when it was originally written, was that this would give us a single more administrable standard, and it's better than having judges figure everything out.

 

      One thing the two hours of argument yesterday really drove home is that figuring out exactly how to determine what counts as neutral and generally applicable can often be a rather detailed inquiry. And courts have different ways of thinking about which exemptions matter at which point.

 

      I'll give you an example of one that came up repeatedly at the argument yesterday was how and whether to think about exceptions that are at one stage of the foster process, say the child placement stage, and whether those make the law not of general applicability if someone's asking for an exception at a different stage, namely the home certification stage.

 

      Smith also allows laws to get strict scrutiny where they are not neutral, and that then leads to questions about looking at different statements from different governing authorities, and so forth. So for the petitioners, we also present to the argument that all of this suggests that the Court really should just get rid of Smith and go to an understanding of the Free Exercise Clause that is grounded in the text, history, and traditions of that clause.

 

      The Court has already done that in some places. It does it, for example, in the religious autonomy and church autonomy areas, as in the Our Lady of Guadalupe case last term. It does it where there is particularly clear discrimination against religion, as in Espinoza and Trinity Lutheran. But overall, the argument was simply that the Smith approach is not an easy administrable test, as the hours of argument yesterday kind of suggested. And also that Smith gives bad incentives to governments. That here, you had Philadelphia who had tried, I believe, six different versions of its rule going into yesterday's argument to try to find the right formula by which they'd be allowed to restrict religious exercise. And Smith, in some ways, creates the incentive to go do that. Smith tells governments that you can prohibit someone's religious exercise. You've just got to come up with the right formula to do it.

 

      Philadelphia has kind of demonstrated over a couple of years now that, as long as they're told there is a way that they can do it, they're going to go seek out that way. And if it takes a sixth or a seventh try, they may well try it. That's why grounding the Free Exercise Clause more in the text and history and saying, the Free Exercise Clause simply says no prohibiting the free exercise of religion. And therefore, if there's a prohibition on someone's free exercise of religion, really, the main question that should be asked is, well, does the government have a particularly compelling reason to do that? Otherwise the government shouldn't do it and the government should find a different way.

 

      So that argument was presented by Ms. Windham. And since I'm her colleague, I will just tell you in utterly objective terms that she was excellent and superb as she made that argument. Next up, Hashim Mooppan argued for the federal government. The federal government took the position that this was a clear violation of Smith. They said that this law was not neutral and generally applicable because it has exceptions. They pointed out that Philadelphia had acted in a rather draconian manner. At one point, Mr. Mooppan had a great line towards his closing, I believe, where he said, what the City's done here is worse than just cutting off its nose despite its face. Its cutting off homes from children in need over what is really a hypothetical question and that, you know, if we're going to have a serious commitment to pluralism, a serious commitment to a "live and let live" approach to the First Amendment, Philadelphia can't and shouldn't be allowed to do what it did.

 

      There was some questioning of Mr. Mooppan about a variety of factors. About, well what impact would this have on the federal government's contracting rules, given that the federal government also contracts with a lot of entities to do all sorts of different work? And the answer was, I thought quite telling, was well we're already subject to the Religious Freedom Restoration Act. I think that's an important answer because it really shows that much of Philadelphia's arguments were of the slippery slope variety, that well we may not be able to govern and look at all these other places where a stronger Free Exercise Clause could cause us problems if we had to face strict scrutiny.

 

      But the elephant in the room, so to speak, was the federal government. And the federal government is already subject to the Religious Freedom Restoration Act. It has been for 27 years. It does everything, or many of the things, that Philadelphia does, just on a much bigger and broader scale. And that hasn't actually been any problem. In fact, it's been quite an administrable standard for the federal government. They don't seem to have any difficulty following it. And I think that that's an important point, particularly because administrability and the fear of that slippery slope was a lot of what motivated the original Smith decision. Congress, in many ways, has kind of run the experiments for us and given us the example of how this can work and how religious exemptions really don't lead to anarchy at all. It's really actually quite fine.

 

      Two lawyers presented argument on the side of the City, Neal Katyal for the City and Jeff Fisher for the ACLU as an intervener. They argued that Catholic Social Services was simply a contractor subject to the City's managerial authority and that the City really only needed a reasonable reason, a rational reason, for what it was doing.

 

      They were pressed on whether their theory would also allow the government to take over other private activities, or previously private activities, such as hospitals, and so things like impose a requirement to provide abortions. At least, when given the chance to say that their theory wouldn't let the government do things like privatize hospitals, Mr. Fisher said that he thought they might be able to just do that.

 

      And I thought that was pretty telling, in terms of where the government's argument goes here. If it's really the case that the government can take over activities that, for a long time, have been private religious activities and were done by religious groups for centuries, if the government can really take them over and then dictate rules that require people to violate their religion, and if the only test that gets applied there is, essentially, a rational basis test, that really is an argument for the government in whether it's the education area, the healthcare area, or here, the foster care area, it really is an opportunity for the government to expand its reach. And at the same time, do it without any serious protection from the Free Exercise Clause, at least, as the City and the ACLU were pushing for, that does seem rather dramatic.

 

      A couple of key moments from the questioning. All of the justices, I believe all of the justices, at one time or another -- let me back up and fix my comment on the fly. I shouldn’t say all of the justices. Let me start with Justice Kagan, Justice Sotomayor, and Justice Breyer, each of them at different points pushed the City or the ACLU on whether there was some compromise available, or whether the City really is giving itself extra authority to create exemptions that hurts their argument.

 

      So Justice Kagan, for example, pressed Neal Katyal on the fact that the contract itself allows for exceptions. And she said that she understood Smith and Lukumi to say that if you do something like that, you should be subject to strict scrutiny. The City argued that, well they haven't used that authority yet. And Justice Kagan said that she wasn't sure that they could get out of it quite that easily.

 

      Justice Breyer and Justice Sotomayor both openly pushed lawyers for the City and the ACLU on whether a compromise could be available here, given that Catholic Charities has done excellent work in this field for a long time. And given that they're perfect willing to refer people. And the City did not indicate any compromise that they would be willing to do, other than having Catholic Charities do the certifications, but append a statement to them saying, even though we do this certification, we don't endorse same-sex marriage, which is something that Catholic Charities has said it wouldn't be able to do. Let me just pause for a second, look at my notes, see if there are any other highlights from the argument before I take any questions folks have.

 

Nick Marr:   Okay great. We'll open it up --

 

Mark Rienzi:  Nick, can I give one other point.

 

      I thought it was pretty telling, Justice Kavanaugh, toward the end of the argument said two things that -- one, Justice Kavanaugh noted that the City's position seems rather absolutist and extreme. And saying that the City had kind of created this clash, given that no actual same-sex couple had come and asked Catholic Charities. And he framed up the issue in, I thought, an interesting way toward the end of the argument saying that, look the Court has previously, in cases like Obergerfell and Masterpiece Cake Shop for example, it has indicated that there's room for -- even in Bostock, although I'm not sure Justice Kavanaugh mentioned Bostock. But in those cases, the Court has indicated that there is going to be room for religious disagreements on issues related to same-sex marriage. And so he asked whether Philadelphia's approach would essentially be requiring the Court to go back on the promises of those cases, to go back on the indications in those cases that the Court would be protective of religious differences when the time came. And I just thought that was a very interesting way to hear one of the justices put it, that there has been this promise over the course of the cases related to same-sex marriage where the Court has indicated that there would be protection for religious groups.

 

      Chief Justice Roberts, in Obergerfell had actually specifically flagged this issue of foster and adoption as one of the areas they would need to deal with. I do think it's the case that having decided the previous cases the way they have, the justices are aware that one of the things -- that one of the consequences of that is that it puts some of the religious groups in these positions. And I thought it was heartening to hear the Court talk about it.

 

      So just a 30-second wrap up, I'll say, overall my view is the argument went very, very well for the petitioners. That's certainly what the press reports have indicated. To me, it seems like it's a clear win for the petitioners here. And I think the only real question is how the Court will frame up the win. I think there's, judging from the questions from justices Kagan, and Sotomayor, and Breyer, I think all nine justices, there's some indication that something other than what Philadelphia has done should be done here.

 

      So there's strong indications that the justices will side with Catholic Social Services and the foster moms. And I think there's an open question of exactly how the Court frames the relief, whether they go ahead and say that Smith has really caused all this trouble, and therefore, we need to state the standard in a better way, in a more historically grounded way, in the way that they've been doing with the Establishment Clause, or whether they just say this is a clear violation of Smith because of all the exceptions. Obviously, we'll have to wait 'til June to see exactly what they do. Or if not June, several months.

 

Nick Marr:   Thanks very much, Mark. We'll go to audience questions now. So we'll go to our first questioner.

 

Mitchell Keiter:  Hi. This is Mitchell Keiter, and congratulations on what seemed to be a good day. But I called a few months ago in a different Teleforum. And I suggested that there seems to be a greater appreciation among general public for acts of conscience when they concern a particular procedure, like abortion or sterilization, than those that are rooted in an individual status, like same-sex marriage, which has often, rightly or wrongly, been analogized to racial discrimination, as even some of the justices asked about at argument.

 

      And so I'm wondering what you made of Justice Barrett's question when she analogizes to a Catholic hospital having to do an abortion. And it seemed to me that counsel really wanted to distinguish that and saying no, no, we would never do that. When, in fact, in California, there are cases where hospitals must perform certain procedures like sterilization. And insurance companies have to cover abortion and things like that. And it seems that, at least from my perspective of the argument, that is less justifiable, even on those who are not sympathetic to religious liberty, than discrimination concerning, or an objection of a couple, based on the status. And I'm wondering how different acts of conscience may be addressed by the Court in its opinion.

 

Mark Rienzi:  Yeah, it's a good question. I don't think we got much out of the Court, or I don't think there was much that was too clear from the questioning that went along those lines. There were some questions about how it compares to race, mostly to Mr. Mooppan, to the federal government, and he pointed out that the Court, itself, has made clear that this is quite different from race.

 

      To me, I think the upshot of Justice Barrett's very good questions about religious hospitals, and so forth, was really just to drive home the idea that, if it's really true, as the government says, that the government can take over different areas of life and social services, and then once it does it can say, my way or the highway, you have to do this according to the government's terms, or you're out. And then tell everybody -- and the Free Exercise Clause gives no protection, that would be a pretty dramatic change in our society and I doubt that there's much appetite on the Court for going in that direction.

 

      I mean, ultimately, I think the way the Free Exercise Clause works, the main way the Court is going to think about it is just, is there a sincere religious exercise here. And there was no doubt, no question yesterday, that there is a sincere religious exercise that the government is forcing somebody to violate or to give up.

 

      And once you do that, really, the attention should then focus to, does the government have a good enough reason. As several lawyers pointed out yesterday, the Court's cases related to race make clear that race gets somewhat special treatment. And I don't think there was much serious consideration that the government, here, would be able to pass strict scrutiny given how many other agencies there are and how no one had ever even asked for this service from Catholic Charities.

 

Nick Marr:   Our next questioner is caller with the area code 951.

 

Todd Treyhill (sp):  Hi. So my name's Todd Treyhill. I'm actually a law student at Vanderbilt, and I listened to the arguments yesterday instead of studying. But I enjoyed them. And I had a question about a concession that the historical aspect of Catholic Society. I mean this wouldn't mean a lot if the fact that they had been doing it for 200 years. And then I think Justice Kagan asked, you know, about what if there was an organization that didn't have this same history of providing services under these religious reasons.

 

      Do you think -- is that the petitioner's position, that a new adoption agency who pops up and wants to engage in the same type of religious, I guess, exclusion based on sex and marriage, would that preclude them from -- like, do they have to have a history in order to exercise those rights? I was curious about the petitioner's position on that.

 

Mark Rienzi:  Sure. I'll just say, I don't -- I think you might be reading a little bit more into that exchange with Justice Kagan than was actually in or was intended to be in it. I think all Lori Windham said (inaudible 00:26:24) that something -- that would be different. I mean, truthfully, a big piece of the argument here, is that Philadelphia certainly can't have a compelling interest in kicking Catholic Charities out when Philadelphia, itself, admits that Catholic Charities is really a point of light in its program. And that they've been able to provide this service very well for a very long time.

 

      I don't think that means that someone who is the new kid on the block providing it couldn't also win, and I don't think that's at all what was said yesterday. So I think it’s more just saying, look history matters, history always matters when interpreting -- or it should always matter when interpreting the Constitution. History matters. This is something religious groups have been doing for a long time, in particular, this religious group. And when you do strict scrutiny, you typically do it to the person, like to the particular entity that's there. And when you have someone who's a long-time successful provider, I think it frankly, it just makes it harder for the government to be able to make the claim that they have an interest here. If there's a new provider, I also think a new provider certainly also has free exercise rights. But I think the history is certainly helpful.

 

Nick Marr:   All right. Next question.

 

Caller 2:  Hi. Great discussion. Congratulations to your firm on what sounds like hopefully a good outcome, great argument, and really important case.

 

      My question relates to the future of Smith. And I'd like to get your comment on what was reported to be Justice Barrett expressing some reservations about overruling Smith. And ask whether there's been discussion about offering the Supreme Court something else. Like, for instance, where they might have a comfort level of scaling back Smith to criminal law or to something else, kind of like they've done on the Establishment Clause side with Lemon v. Kurtzman. Not quite saying they're willing to overrule it but going almost that far.

 

Mark Rienzi:  Yeah, so the short answer is, I think that's certainly on the table for them. In other words, we asked them to revisit Smith. Certainly one way to revisit Smith would be to say, well that was about across the board criminal prohibitions. There's certainly nothing about Smith that would tell you that it gives you the answer for how governments can treat a church-run foster agency.

 

      So I think the kind of limits you're talking about are certainly in front of the justices and are available to them. If they want to just say, look Smith doesn’t apply here because this is nothing like the underlying situation in Smith.

 

      As to Justice Barrett's question, I guess I didn't read the question as hostile to revisiting Smith. I understood the question to be, essentially, raising what is a rather common threshold question that the justices often think about, which is, why should I go get this, particularly if you think you ought to win either way? And we certainly take the position that we do win either way. But it was a question as opposed to an assertion. And I think the answer to the question was important. And the answer was, well, Smith has actually caused some significant harm. Smith let the lower courts to think this was okay and led Philadelphia to think this is okay. And ultimately, when you issue a ruling, you're going to have to say, how the Free Exercise Clause applies here. And if Smith is wrong, you don't want to just go ahead and continue to reiterate that.

 

      So I didn't take the question as hostile. I took it as giving an opportunity to make the argument as to why the Court really does need to go revisit Smith. And just to drive home the point on a personal level. Cecilia Paul, who was one of the original plaintiffs in this case, she was a former Foster Mother of the Year in Philadelphia and she was a former NICU nurse. So she was well trained at taking care of infants. And what she would do is she'd take care of babies who were born with drug addiction. And she devoted her life to doing this, at least the second part of her life to taking care of these kids, and I think she fostered more than 100.

 

      She spent the last two years of her life with an empty house and empty beds, unable to take care of these children while lawyers fought about what counts as generally applicable and what counts as neutral, and how we should figure out which exceptions count, and so forth. A properly functioning Free Exercise Clause ought to make that a much clearer case. And I do think the longer the Court keeps Smith in place, the more these culture war fights will simmer, the more governments will think that, yeah, even if I lost the last case, there's still a way for me to take one side in a culture war and beat up the other side.

 

      So I think Smith gives some pretty bad incentives there. And I think there's a decent likelihood the justices are going to say at least something to cabin Smith because I think it's pretty obvious that Smith has not worked well. Smith has not served us well.  It hasn't served religious people well. It frankly hasn't served government well. And maybe most importantly, I don't think it's served society well because it actually fuels these culture war fights by giving the government the belief that there is a way to prohibit free exercise, you just got to come up with the right formula. And so they keep trying. Long answer, but I do hope that the justices get there.

 

Nick Marr:  This is Nick. Let me briefly follow up, what's the replacement for Smith?

 

Mark Rienzi:  So the replacement for Smith is --

 

Nick Marr:   Or is there one?

 

Mark Rienzi:  Yeah, so the replacement for Smith is to focus on the text, history, and traditions of the Free Exercise Clause. The text says no law prohibiting free exercise. The problem with Smith is that Smith says you can prohibit free exercise if you've got the right formula.

 

      So the danger, the problem with Smith is that it doesn't just look to see, do we have a prohibition of the free exercise of religion. Instead, it says, well, do we have one? And then, is it the kind that we say is okay? Is it neutral enough or generally applicable enough?

 

      A good replacement for Smith would take out that suggestion that there are okay ways to do it. And would really just say, if there's a prohibition of free exercise of religion, I think there's really just a couple of different paths there. And again, one of the mistakes with Smith is that Smith took the kind of one-test-to-rule-them-all approach of thinking you could reduce the Free Exercise Clause to a single test. It's a little bit odd, given that we don't treat much of the rest of the First Amendment that way. It's kind of parallel to the mistake in Lemon.

 

      But I think if you look at the Court's cases, there's different lines of cases in there. So some of them, like Hosanna-Tabor or Our Lady of Guadalupe where you have these religious autonomy interests, the Court doesn't even apply strict scrutiny. In some places, the Court does say, well, if the government can meet strict scrutiny, if it’s got a particularly compelling reason, we'll let them do it. So I think it's something along lines. But I think it's a bit of a trap to fall into the idea that there has to be a single post-Smith test that rules every case. That's not the way the Court has done the Free Exercise Clause in the past. It's not the way they do other rights. And I don't think it's particularly helpful here.

 

Nick Marr:   We've got one question waiting in the queue and we'll go to it now.

 

Don Huddler:  Hi. Great, thank you for taking my question. It's Don Huddler from Philadelphia. I was just curious if, during the oral arguments, the Court had any questions about Philadelphia's apparent looking behind the religious belief asserted and questioning its legitimacy or consistency with "modern Catholic practice?" That was something that several of the amici brought up in the briefing, particularly the Jewish Coalition for Religious Liberty. And just curious if the Court had any questions about questioning the orthodox or properness of an asserted religious belief?

 

Mark Rienzi:  Yeah, it's a great question and I apologize. It's really something I should have addressed previously. So the short answer is not really. The Court really didn't get into -- there were some there. There were some statements by the lead city official calling the heads of the Catholic agency and telling them she thinks they ought to follow Pope Francis -- what she thought was Pope Francis's view of these issues more than the Archbishop's view. So there was some stuff you could pick at.

 

      But the short answer is, no. The justices didn't pick up on it. And at least from my point of view, I think that makes sense. In other words, I don't think a ruling that just focuses on the particular statements that somebody made is -- it's at least not the most durable kind of relief because then governments can just go back and try to make different statements. So I think what was said and done in that respect was clearly wrong and clearly a violation.

 

      The justices didn't seem to be paying too much attention to it. And I suspect it's because they know that if you have a ruling just based on those kinds of things, it's frankly too easy for the government to go back and get a redo. I mean, if you think about a case like Masterpiece Cake Shop, I don't think the ink was even dry on their win at the Supreme Court where people started going in with other new different ways to test them. And a different kind of cake we're going to make them make to try to throw them back into the same process, into the same administrative process. And then hope that the people running it say, oh, I'm not supposed to say this or that, so I'll do it.

 

      So ultimately, the justices didn't give a whole lot of attention to that line of argument. I suspect it's because they know that it's not really a way to get rid of the fight. It's actually a way to kind of force the -- you may force the government to speak a little more guardedly, but you're not really solving the problem. And I suspect the justices took this case because they understand that there are some conflicts and some problems that need addressing. And I wouldn't expect them to come up with kind of a narrow case-specific answer like that. I don't think that really serves anybody, at least not the Court, and at least not society, for them to do that.

 

Nick Marr:   Now we'll go to our next question.

 

Megan Brown (sp):  Hi there. Thanks so much. This is Megan Brown. Good to talk to you, Mark. I think you basically answered my question in the last response. But it seemed, in your narrative, that you emphasized a couple of times that no same-sex couple had attempted to avail themselves of the foster services that are at issue here with the Catholic Church. And I was going to ask if you thought that the fact that there hadn't been sort of a party aggrieved or someone who'd gone through it on whose behalf the City was acting would lead the Court to maybe take a narrow approach to say, let's wait and see until someone has harm. But I think you just kind of addressed that.

 

Mark Rienzi:  Yeah. I tend to doubt that they would use that as a reason to duck or delay. I mean, they knew that when they took the case. So it's not a new fact. That's been in front of them the whole time. I think it does kind of highlight the fact that, in the real world, there are "live and let live" solutions. In other words, the gay community and the Catholic Church have co-existed on this pretty well in Philadelphia.

 

      There are plenty of gay foster families in Philadelphia. They've been able to do it without the Catholic Church and they haven't even been knocking and asking, frankly, because I think people are able to live with difference. And people are able to know, okay, the Catholic Church has a different belief on that. I don't really want to invite them into my house to evaluate my family life anyway. So I think it does show that people can live together and be okay with the person down the street having different beliefs or a different lifestyle than them.

 

      But I would be surprised, at least, if the justices would use that as a reason to go really narrow, or punt, or wait for something else. Because I think, as Chief Justice Roberts noted in Obergerfell, this is a looming issue and there have been agencies shut down all across the country, which means there are kids not getting into those homes, and homes not being recruited. So I don't think they'd use that as a reason to go very narrow. I think they took this case because they know this is an issue they really need to resolve. And frankly, if they resolve it well, it's the kind of thing that can stop popping up on their docket. One of the reasons they've been getting these cases every year or two since Obergerfell is they haven't yet had the opportunity to -- they haven't taken the opportunity, at least, to kind of squarely resolve the conflict and just say, hey we're going to say same-sex couples can get married and we're going to say the religious groups can still be religious. And that has teeth to it. So I think they probably know that coming to a good, firm answer will be good for society and good for the Court and its docket.

 

Nick Marr:  Okay. We'll go to our next question now.

 

Ian Luko (sp):  Hi there. This is Ian Luko. You've talked about the issue of expanding government functions and going into areas that religious groups had previously worked in. I just wanted to get a little clarity on that with regard to that issue in relationship to Smith and whether it stays or whether it gets overruled. Would that -- would the analysis depend upon Smith being overruled? Or is it a First Amendment issue for a city to create some sort of restrictive licensing requirement for a religious organization to do activity that it doesn't think of as being obviously religious, like -- or that it thinks it might have a secular function of some kind. Thank you.

 

Mark Rienzi:  Sure. So I think regardless of whether Smith gets revisited and overturned, that's an issue. What I was say -- and Philip Hamburger, who you may know has been an academic defender of at least some of the Smith rule. But Philip Hamburger filed the brief in this case in support of the Catholic agency and the Catholic foster moms, in which he said, look Smith was written for a world where the law was done primarily legislatively. And government has been expanding quite a lot in the past 30 years. And in particular, the administrative state has been expanding quite a lot in the last 30 years. And what you're dealing with is the use of administrative power by the government, the assumptions of Smith don’t even hold.

 

      So I would say, I think it's an ongoing problem, the creep of government into almost every aspect of life. And I think it creates more conflict than maybe Justice Scalia had in mind when he wrote Smith. And so I think what it shows is that Smith is not a particularly well-designed standard to deal with that. I mean, one of the things Smith says is that Smith basically presumes you can get protection from the legislature. That's interesting, but here, the legislature never even acted. The legislature had nothing to do with it. It was just an action by an administrative agency with no law enacted at all.

 

      And so I think what it kind of points out is that Smith is poorly -- it's just not a very good standard for dealing with the constant encroachments of government. And again, if you go back just to the text of the Free Exercise Clause, the text of the Free Exercise Clause doesn't say you can prohibit religion so long as you've got -- so long as you do it in quite the right way. It just says no prohibitions on free exercise. And so I would think as the government expands to more and more different areas of life, you get more of those conflicts. And you get more, and I think better, arguments that the government really has other ways that it can achieve its goals. It has other ways it can achieve its goals and it just doesn't need to keep doing these kinds of things to religious groups.

 

Nick Marr:   So Mark, we don't have any questions in the queue. Maybe we'll get one. But do you want to wrap up?

 

Mark Rienzi:  Sure. I would just say it was a very good day at the Court yesterday. All of the justices seemed to recognize the really wonderful work that these foster moms and the foster agency does. There wasn't any serious argument that the government isn't able to work around this religious exercise. They can, and they have, and it's been fine. And ultimately, the real question is just, how do you go about applying the Free Exercise Clause?

 

      We think there are very strong arguments that there are exemptions that mean Philadelphia should be subject to strict scrutiny anyway. But I think the -- what the real whole two-hour expanse of the argument showed is that the Smith rule is -- you know, it's 30 years after Smith and we're still spending two hours trying to debate which exceptions are the right kind of exceptions or the wrong kind of exceptions. And what it really shows, and what I hope the Court recognizes, is that it's time to get to a better standard that's actually grounded in the text of the First Amendment, rather than what have turned out, frankly, to be wrong predictions about policy and consequences, which is what Smith was based on, and the facts have proven those wrong.

 

Nick Marr:   Thanks very much for your time and expertise today, Mark. And thanks also to our audience for calling in. We welcome your feedback by email at info@fed-soc.org. And be checking our website. Keep an eye on your emails, too, for announcements about upcoming teleforum calls. We have one coming up here in about an hour.

 

      And also, check our website for information about the upcoming National Lawyers Convention. That will be next week. It's all free, all virtual, and all week. So check that out. See which panels you want to register for. Hope to see you there. Thanks all for being with us. We are adjourned.

 

 

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Dean Reuter:  Thank you for listening to this episode of Teleforum, a podcast of The Federalist Society’s practice groups. For more information about The Federalist Society, the practice groups, and to become a Federalist Society member, please visit our website at fedsoc.org.