Notre Dame Law Review

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Asma T. Uddin*

Introduction

In the 2015 case Obergefell v. Hodges, the U.S. Supreme Court held that states cannot deny same-sex couples access to marriage and its accompanying benefits.¹  Some religious communities with traditional beliefs about marriage and sexuality responded to the ruling with strong concerns about its potential impact on their religious exercise.²

One area of concern involved religious child-welfare organizations that work with the state to provide these services.  In all states, there are two options for prospective parents seeking to adopt children.  In the private system, birth parents voluntarily place their child up for adoption through a private organization.³  In contrast, the public system includes children that have been removed from their families by the state or orphaned without any relative to take care of them.⁴  Private organizations—including private religious organizations—can work in the public system and in many cases have partaken in this work, so much so that in some states, Christian child-welfare organizations are the primary provider of state child-welfare services.⁵

Participating in the public system means these private organizations must work hand-in-hand with the state.  Many of these private organizations rely on contracts to govern that relationship, essentially making them state contractors.⁶  Some states require compliance with their nondiscrimination policy as a condition of receiving those contracts, even if the nondiscrimination policy runs counter to the religious organization’s sincerely held religious beliefs.⁷  The question then arises as to how to balance (1) the organization’s right to engage in religious exercise with (2) the state’s interest in nondiscrimination.

The Court recently considered this question in Fulton v. City of Philadelphia.⁸  Fulton involved Philadelphia’s refusal to contract with Catholic Social Services (CSS) for the provision of foster care services unless CSS agreed to certify same-sex couples as foster parents.⁹  CSS did not comply with the city’s requirements and instead challenged Philadelphia’s public accommodations law under the First Amendment.¹⁰  More specifically, CSS argued that its practices are not subject to the Court’s rule in Employment Division v. Smith¹¹ that would deny exemptions from neutral laws of general applicability.¹² Smith is inapplicable in cases where—like Fulton—the government grants individualized exceptions to its laws; in those cases, CSS argued, courts are required to apply the strict-scrutiny standard.¹³

Writing for the Court, Chief Justice John Roberts agreed with CSS.  The opinion focused on a contract provision allowing the commissioner of the city’s Department of Human Services to grant exemptions in her “sole discretion.”¹⁴  The provision afforded sufficient discretion to the government to render the nondiscrimination policy not “generally applicable.”¹⁵  As such, the Court said, the policy was not subject to Smith; instead, the city’s denial of a religious exemption to CSS had to be assessed using the strict scrutiny standard.¹⁶  The city failed to meet that exacting standard, and CSS won.¹⁷

By focusing on the narrow question about general applicability, the Court sidestepped the bigger issue of balancing religious liberty and LGBTQ rights in the context of religious child-welfare organizations.  The issue thus remains open and subject to legal uncertainty.

A few states have taken steps to create certainty for religious actors in this space.  To date, eleven states have enacted religious exemptions to protect religious actors in the child-welfare space.¹⁸  The exemptions are not identical.  Some prohibit the government from punishing religious entities that decline to serve LGBTQ prospective parents and‌/or LGBTQ youth.¹⁹  Others go further and prohibit the government from denying these entities licenses, grants, contracts, or participation in state programs based on their religious beliefs.²⁰

Same-sex couples and others have opposed these exemptions in at least two states.  This Essay considers those challenges and the constitutional arguments raised there under the Establishment Clause, along with responses by religious entities under the Free Exercise and Establishment Clauses and the Religious Freedom Restoration Act (RFRA).  Before considering those cases in Part II, this Essay in Part I looks at legal conflicts that have arisen in states that do not have such exemptions.

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©2023 Asma T. Uddin.  Individuals and nonprofit institutions may reproduce and distribute copies of this Essay in any format at or below cost, for educational purposes, so long as each copy identifies the author, provides a citation to the Notre Dame Law
Review Reflection, and includes this provision in the copyright notice.

*Visiting Assistant Professor of Law at Catholic University of America Columbus School of Law.  I would like to thank my research assistant, Ross Fodera, for his assistance throughout this project.

1576 U.S. 644 (2015).

2See, e.g., Michael O’Loughlin, Catholics React to Supreme Court’s Marriage Decision, Crux (June 26, 2015), https://‌cruxnow.com‌/life‌/2015‌/06‌/catholics-react-to-supreme-courts-marriage-decision [https://perma.cc/2HU4-N93B] (expressing a variety of reactions of Catholics to the Obergefell decision); Religious Groups React to Supreme Court Ruling on Same-Sex Marriage, Tampa Bay Times (June 26, 2015), https://‌www.tampabay.com‌/news‌/courts‌/religious-groups-react-to-supreme-court-ruling-on-same-sex-marriage‌/2235233/ [https://perma.cc/KXR8-CYP4] (including responses from numerous religious leaders and groups).

3Adrianne M. Spoto, Note, Fostering Discrimination: Religious Exemption Laws in Child Welfare and the LGBTQ Community, 96 N.Y.U. L. Rev. 296, 304 (2021).

4Id.

5Id. at 305.

6Id.

7See id. at 301.

8141 S. Ct. 1868, 1874 (2021).

9Id. at 1875–76.

10Id. at 1876.

11494 U.S. 872 (1990).

12Fulton, 141 S. Ct. at 1876.

13See id. at 1880.

14Id. at 1878 (quoting Supplemental Appendix to City Respondents’ Brief on the Merits at 17, Fulton v. City of Philadelphia, 141 S. Ct. 1868 (2021) (No. 19-123)).

15See id.

16Id. at 1881.

17Id. at 1881–82.

18See Ala. Code § 26-10D-5 (2023); Kan. Stat. Ann. § 60-5322 (2023); Mich. Comp. Laws § 722.124e (2023); Miss. Code Ann. § 11-62-5 (2023); N.D. Cent. Code § 50-12-07.1 (2023); Okla. Stat. tit. 10A, § 1-8-112 (2023); S.D. Codified Laws § 26-6-39 (2023); Tenn. Code Ann. § 36-1-147 (2023); Tex. Hum. Res. Code Ann. § 45.004 (West 2023); Va. Code Ann. § 63.2-1709.3 (2023); Exec. Order No. 2018-12, 42 S.C. Reg. 5 (Apr. 27, 2018).

19See, e.g., S.D. Codified Laws § 26-6-39 (2023).

20See, e.g., Miss. Code. Ann. § 11-62-5(2) (2023) (prohibiting the state from engaging in discriminatory action against child-welfare organizations who decline to provide service due to sincerely held religious beliefs).