They note that the agency was told by city officials to change its religious practices because it is "not 100 years ago" and "times have changed." Officials also instructed the agency to follow the city's view of the "teachings of Pope Francis."
"One of the City's highest officials called a religious organization into a meeting to tell its leaders how to interpret the Pope's teachings, then penalized them when they arrived at the 'wrong' answer," the agency's lawyers argued in a brief.
In addition, the agency says Philadelphia Mayor Jim Kenney has demonstrated "a long history of publicly criticizing the Archdiocese" and once said that he "could care less about the people at the Archdiocese."
Catholic Social Services also argues that the City of Philadelphia's actions are not neutral, and its policies are not generally applicable.
The city claims that it has a policy requiring foster agencies to provide home studies to every applicant who wants one. However, Catholic Social Services' lawyers argue in a brief, "The City also admitted it never told secular foster agencies about this policy, nor monitored their compliance."
The city also allows exemptions at the commissioner's discretion, without any identifiable written guidelines, but told Catholic Social Services that they would not be getting an exemption.
For these reasons, Catholic Social Services is arguing that the case should be reviewed under the judicial standard of "strict scrutiny," meaning that the government is not permitted to place a substantial burden on free exercise of religion unless there is a compelling state interest for doing so, and the least restrictive means of doing so are used.
In the Obergefell decision, the majority dedicated a paragraph to the question of religious liberty, clarifying that religious groups and individuals maintain the right to "advocate" and "teach" their beliefs against same-sex marriage. Court observers, however, noted that this language reflects a commitment to free speech about religious beliefs, rather than the freedom to put those beliefs into action – to practice or exercise religion, as the First Amendment states.
At the heart of the Philadelphia case is the question of whether the newly-recognized "right to gay marriage" precludes religious individuals and organizations from living out their centuries-old beliefs.
If the Court were to rule in favor of Catholic Social Services, it could have significant implications. A narrow ruling in favor of Catholic Social Services, based on the city's alleged display of hostility toward religion, would affirm the Masterpiece decision and prompt lower courts to examine the language that is used by government officials in similar cases, looking for signs of hostility. In cases where this blatant hostility is absent, courts may be split in their decisions.
If the Supreme Court ruled more broadly, affirming that the principle of religious freedom protects individuals and agencies that object to tacitly endorsing same-sex marriage, it could offer widespread legal protection to wedding vendors of all types – photographers, florists, bakers etc. – as well as adoption agencies, marriage counselors, homeless shelters and other service providers.
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A ruling against Catholic Social Services would also have significant repercussions for Christians who object to same-sex marriage, potentially leading wedding vendors and service providers to close their businesses. While such a ruling would be surprising to many observers given the Court's current composition, unexpected results are always possible.
Four years after the Obergefell ruling, it is clear that Chief Justice Roberts was right in suggesting that the larger question of religious freedom and how it relates to same-sex marriage would need to be answered. A ruling in the Philadelphia case, should the Court choose to take it up, could play a significant role in answering that question.