RFI’s Islam and Religious Freedom Action Team has joined United Sikhs, the Bruderhof, the International Society for Krishna Consciousness, and Asma Uddin in filing an amicus brief in the case of Sharonell Fulton, et al. v. City of Philadelphia. The brief urges the Supreme Court to overturn its 1990 opinion in Employment Division v. Smith.

The Smith decision eviscerated the Free Exercise Clause and fueled passage a few years later of the Religious Freedom Restoration Act (RFRA). Congress intended RFRA to restore the pre-Smith constitutional protections for religious freedom, namely that even neutral, generally applicable laws are subject to strict scrutiny when they curtail religious liberty in particular cases. Three American Muslim organizations were part of the multi-faith coalition that backed RFRA’s passage.

The Fulton case is especially egregious. Sharonell Fulton and Toni Simms-Busch have fostered needy children in Philadelphia for years through Catholic Social Services (CSS). In March 2018, however, the City of Philadelphia halted the placement of children with families who work with CSS on account of the organization’s refusal to place children with same-sex couples, a practice CSS follows out of its commitment to Catholic teachings on marriage. Before the City suspended its work, CSS had served some of the most vulnerable children in Philadelphia for more than 100 years. Fulton and Busch are represented by the Becket Fund for Religious Liberty, a non-profit, public-interest legal and educational institute.

“It’s important for Muslim voices to support this case for two reasons,” said Ismail Royer, Director of RFI’s Islam and Religious Freedom Action Team. “First, it is unconscionable that a pillar of the community like CSS would be shut down merely because it adheres to traditional religious beliefs about marriage and family. Second, it’s time for the Supreme Court to abandon Employment Division v. Smith and restore a Free Exercise Clause jurisprudence that is faithful to the intent of the Constitution’s framers.”

Among others ways of characterizing it, this case represents a violation of institutional religious freedom. It is yet another example in a long line of state and local laws that require faith-based foster care and adoption agencies either to abandon their religious convictions or abandon their religious calling. Though it ultimately failed, one of the latest attempts to enact this sort of law occurred in Virginia earlier this year.

The reality is that CSS’s religiously informed placement practices reflect a minority position in many areas of the United States today. And concerns about protecting minority faiths are central to the argument that RFI’s Islam and Religious Freedom Action Team and its fellow amici curiae are making in their brief.

“Smith acknowledged,” the brief argues, “that ‘leaving accommodation to the political process will place at a relative disadvantage those religious practices that are not widely engaged in,’ but saw this [as] an ‘unavoidable consequence of democratic government.’”

The brief implores the Court:

to reconsider this claim and the opinion in which it was made. Avoiding certain consequences of democratic government is the very point of having a First Amendment. And nothing is unavoidable, if this Court will simply take up again the role it long played in enforcing the Constitution’s promise of religious liberty and in defending the minority faiths who cling to it.

The brief’s main argument is that “The Constitution protects the free exercise of religion. And in a religiously pluralistic and highly regulated society like ours, there can be no free exercise of religion for minority faiths without religious exemptions.”

Read the full brief.