SLLC Asks SCOTUS to Not Overturn Precedent Allowing Government Neutrality Toward Religion

The City of Philadelphia refused to contract with Catholic Social Services (CSS) to place foster care children because CSS wouldn’t work with same-sex couples. Philadelphia requires all foster care agencies to follow its “fair practices” ordinance, which prohibits sexual orientation discrimination in public accommodations.

The main question in Fulton v. City of Philadelphia is whether Philadelphia has violated the First Amendment’s Free Exercise of Religion or Free Speech Clauses.

In this case the Supreme Court also has agreed to decide whether to overturn Employment Division v. Smith (1990), in which the Court held that individuals must comply with “valid and neutral law[s] of general applicability” regardless of their religious beliefs.

The State and Local Legal Center (SLLC) amicus brief focuses solely on encouraging the Court to keep Smith.

The brief argues that Smith has provided a “clear, workable rule” to local governments for thirty years. “Replacing Smith with strict scrutiny review of exemption denials would be unworkable. Such review would be fact-intensive and unpredictable, as the concurring and dissenting opinions in Smith revealed.”

The brief also argues that revisiting Smith would harm local governments in numerous ways, because “whenever they denied religious exemptions to neutral, generally applicable laws, they could face constitutional challenges in court” from employees and private contractors.

Finally, the brief points out that Smith allows local governments to promote economic growth by protecting LGBT individuals from discrimination.

John Korzen of the Wake Forest University School of Law Appellate Advocacy Clinic wrote the SLLC amicus brief which the following organizations joined:  National League of Cities, International City/County Management Association, International Municipal Lawyers Association, and National Public Employer Labor Relations Association.