Does the text of the Free Exercise Clause justify special judicial scrutiny of laws burdening religious freedom?
The Supreme Court will decide a landmark case, Fulton v. City of Philadelphia, in the coming months. Much of the discussion of the case has revolved around whether the city’s actions violate the Free Exercise Clause of the First Amendment and whether Employment Division v. Smith ought to be overruled. I have weighed in on that question elsewhere. Here I would like to address a different question: how should the Court deal with the free speech issues the case raises? Fulton is a flashpoint over how expansive a concept of public reason will animate our public square and the legal boundary between private and government speech.
Catholic Social Services has served the City of Philadelphia for several decades in a range of ways, including helping the children of the city in need of foster care by identifying and certifying foster homes and helping connect and support foster families to children in need. Co-petitioner Sharonelle Fulton has worked with CSS as a foster parent for decades, serving dozens of children. Yet in 2018 the city cut CSS and partner parents out of the program after the publication of a newspaper article reporting that CSS had not changed its beliefs about marriage, which the Catholic Church has taught for over two millennia. In accordance with those beliefs, it cannot in good conscience certify any home inconsistent with its conception of marriage.
CSS serves all children regardless of sexual orientation, and it has not in fact turned away any LGBTQ foster parents. CSS will do home studies for single parents regardless of sexual orientation. But it will not certify any unmarried cohabiting couples of any sexual orientation or same-sex married couples. The city contended that CSS had violated its Fair Practices Ordinance, which forbids discrimination in public accommodations on the basis of sexual orientation.
It was apparent that the city’s interest was in speaking a preferred message, and that all foster care partners must echo that message or be excised from the program. In her testimony, Department of Human Services Commissioner Cynthia Figueroa said that continuing to contract with CSS would “send a signal” to LGBTQ youth that “while ‘[we] support you now, we won’t support your rights as an adult.’” One of the city’s “experts” testified that by continuing to allow CSS to participate in the program, it would “put out this message that same-sex couples are somehow not to be valued or [are] inappropriate . . . as to the, in essence, the valuation of them.”
In short, the city believes that continuing to contract with CSS would amount to disparaging government speech that constitutes a dignitary harm to LGBTQ persons. In reply, CSS and associated petitioners argue that their free speech rights are being violated because certain speech is being unconstitutionally compelled.
Speech and Public Reason in the City
The city’s messaging theory is both morally and legally untenable, and it subverts the values of liberty of thought, discussion, and reasonable pluralism that the Free Speech Clause is supposed to protect.
An observer cannot reasonably infer from CSS’s participation in the foster parent system that the city sends a demeaning message to LGBTQ persons any more than a reasonable observer could conclude that, because 62 percent of schools receiving public dollars in a Cleveland school voucher program were Catholic, Cleveland sent a demeaning message to non-Catholics. In both cases, the city disburses taxpayer dollars to private entities capable of carrying out an essential aspect of the common good in a nondiscriminatory way. Whether it is education or foster care, parents have equal access to a wide range of choices of religious and secular partner institutions that fit more or less with their worldviews. (Cleveland had several non-Catholic religious and secular private schools; Philadelphia has around 30 agencies, including three that the Human Rights Campaign champions for their excellence in serving gay couples.) Moreover, in both cases, the government regulates a field that it does not create ex nihilo, but that has long been occupied by nongovernmental institutions whose dignity and integrity should be respected.
When a government disburses public funds evenhandedly to an intellectually diverse citizenry with a range of different reasons for action, it does not endorse any particular orthodoxy. Hence, when considering the behavior of states like Arizona, Ohio, Texas, and others, that protect the right of gay couples to foster children but also accommodate the liberty of thought and speech of faith-based foster care organizations, a reasonable observer should not conclude that the states are broadcasting demeaning messages. Rather, they are clearly seeking to protect the equal civil liberties of all of their citizens.
By forbidding CSS from placing children in foster homes, the city appears to be quashing any public vestiges of the reasonable pluralism that persists on the nature and meaning of marriage. But this is out of step with the landmark case that protects a constitutional right to same-sex marriage. The Obergefell Court asserted that “Many who deem same-sex marriage to be wrong reach that conclusion based on decent and honorable religious or philosophical premises and neither they nor their beliefs are disparaged here.” It continued, “The First Amendment ensures that religious organizations and persons are given proper protection as they seek to teach the principles that are so fulfilling and so central to their lives and faiths, and to their own deep aspirations to continue the family structure they have long revered.” Clearly, the Court recognized that dissensus persists among people of goodwill about the nature and meaning of sexuality, marriage, and family, and that there can be a range of publicly reasonable views on these matters.
Hence, the outcome of this case will have massive implications for the scope of what shall be considered publicly reasonable. It is, in effect, a judicial manifestation of the debate over John Rawls’s idea of public reason. Rawls’s idea was built on the notion that our democracy is marked by the fact of reasonable pluralism limited by a practical consensus on the principles of justice, civil liberties, and civil rights, which Rawls contends would be agreed to by us behind the hypothetical “veil of ignorance.” So while citizens may hold a wide range of public beliefs, they must only give those public reasons for action that they believe could be reasonably accepted by their fellow citizens, and vice versa. Rawls’s initial formulation of this idea was highly restrictive: reasons from comprehensive worldviews, including religious reasons, were ruled out when it comes to public, political deliberation and action regarding “constitutional essentials,” which includes civil liberties and rights. The City of Philadelphia would, evidently, have it the same way.
Rawls’s proposal would require citizens and their representatives to muzzle themselves regarding the deepest reasons for their political convictions, despite a First Amendment that prizes free exercise of religion and freedom of expression, and despite the fact that some of the republic’s greatest statesmen, from Abraham Lincoln to Martin Luther King, Jr., invoked deeply religious and theological reasons for their views of constitutional essentials. As Rawls’s critics have shown, offering religious reasons for favoring certain policies need not be disrespectful or uncivil, nor does it lead to civic dysfunction. On the contrary, as Nicholas Wolterstorff persuasively argued, to refuse out of hand to listen to a fellow citizen’s reasons just because they are religious reasons is itself “profoundly disrespectful.”
By cutting CSS and Sharonelle, both of whom understand their services as religious duties, out of foster placement, the city actually sends the message that institutions and persons living by traditional religious reasons for action are no longer welcome to be full participants in public life. Hence, the City of Philadelphia appears to be resurrecting the old Rawlsian idea of public reason. But that doctrine was never compatible with the First Amendment. If the First Amendment means anything, it protects the right of persons to hold traditionalist beliefs about marriage and frame reasonable plans of life based on those beliefs—and to live out those convictions in public fora, even if they touch on “constitutional essentials.”
Private and Government Speech
Fulton represents a tension between two principles guiding free speech jurisprudence: the protection of private speech and the protection of government speech. On the one hand, the Court has a long tradition of holding that the freedom of private persons to speak is a cornerstone of ordered liberty. As Justice Cardozo put it, the liberty of thought and speech is “the matrix, the indispensable condition, of nearly every other form of freedom.” This entails a fundamental limit on the government’s authority to compel speech: “no official, high or petty, can prescribe what shall be orthodox in politics, nationalism, religion, or other matters of opinion, or force citizens to confess by word or act their faith therein.”
On the other hand, the Court has held that government itself can speak a broad range of messages and thereby can favor or disfavor certain messages over others in various contexts. While the latter principle is in tension with the former, it is necessary for government to function.
The City of Philadelphia contends that this is clearly a case in which governmental speech is protected because, in the context of hiring independent contractors, it can speak whatever message it wants. In declining to contract with CSS, the city is simply acting pursuant to the promotion of its particular antidiscrimination message. Thus, the Court should apply the deferential standard over how government manages employees and contractors. The idea here is that CSS, in its capacity as a contractor, would not be certifying foster homes in their private capacity as citizens or as an arm of the Church, but rather would speak as an agent of the city.
In support, the city invokes Garcetti v. Ceballos, in which the Court held that the First Amendment did not shield a public employee from discipline for speech that was made pursuant to his official duties. It also invokes Engquist v. Oregon Dept. of Agriculture, in which the Court distinguished between the state’s “sovereign” power to “regulate or license, as lawmaker,” and its managerial capacity to act as “proprietor, to manage its internal operation,” holding the latter power to be broader.
One problem with this argument is that the city cannot pretend that its contractors are agents of government speech and also maintain (as it conceded at trial) that Catholic Social Services was considered “an independent contractor and shall not in any way for any purposes be deemed or intended to be an employee or agent of the City.”
Another problem is that the precedents invoked are inapposite because the employment discrimination claims turned on issues like internal office dynamics which clearly fit in the category of managerial capacity. The Court has distinguished “arm’s-length” government decisions like licensing in which governmental speech interests are diminished. It is at least equally plausible to understand the city-CSS relationship as more like a licensing relationship. To understand a church institution as an arm of the city doesn’t seem to fit the facts—and it would potentially raise Establishment Clause problems.
To suggest, as in Garcetti, that the speech here “owes its existence” to or was “created” by the city strains credulity—and not only because the church has both a metaphysical and historical prior dignity and integrity in this area. As in Equal Protection jurisprudence, a licensing relationship between government and a private entity does not thereby transform private action into state action.
Hence, this case is more analogous to the compelled speech cases, further undermining the city’s messaging theory. Government cannot compel a person to be “an instrument for advocating public adherence to an ideological point of view he finds unacceptable.” In this vein, the Court has recently held that states cannot use their licensing power to co-opt pregnancy resource centers into speaking the state’s preferred pro-abortion message. Similarly, here the city seeks to enlist a long-serving, private church institution as one of its spokespersons for its marriage orthodoxy.
Alexis de Tocqueville identified two internal threats to democracy that converge in this case: that the administrative state would expand and curtail liberty in the name of equality and that democratic majorities would exercise a spiritual tyranny over individuals by unduly narrowing the scope of acceptable public opinion. For better or worse, Fulton will be a test of whether one is justified in placing a Tocquevillian faith in the lawyerly sobriety of the judiciary to arrest such threats.