Amicus Brief: Sharonell Fulton, et al. v. City of Philadelphia, et al.
AMICUS BRIEF SUMMARY
NCLA filed an amicus brief in the Supreme Court of the United States in Sharonell Fulton, et al. v. City of Philadelphia, et al. In 2018, Philadelphia abruptly terminated foster placement through Catholic Social Services (CSS) leaving foster parents like Sharonell Fulton, who has fostered more than 40 children, without CSS’s support. NCLA is deeply concerned about this decision excluding a religious organization.
Philadelphia left its policy decision to the City’s Department of Human Services (DHS)—an administrative agency. This is problematic because, in comparison with legislative policymaking, administrative policymaking is unresponsive to the interests of religion—especially relatively orthodox or traditional religion—thus rendering resulting policies unequal and unconstitutional under the First Amendment’s Free Exercise Clause.
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DOCUMENT: No. 19-123
COUNSEL FOR AMICUS CURIAE: Philip Hamburger, Mark Chenoweth, Kara Rollins
FILED: June 3, 2020
June 3, 2020 | Brief of Amicus Curiae New Civil Liberties Alliance in Support of Petitioners
June 3, 2020 | NCLA Asks US Supreme Court to Recognize that Administrative Policymaking Is Profoundly Unequal for Religious Americans
Washington, DC (June 3, 2020) – The New Civil Liberties Alliance, a nonpartisan, nonprofit civil rights group, filed an amicus brief today in the Supreme Court of the United States in Sharonell Fulton, et al. v. City of Philadelphia, et al. In 2018, Philadelphia abruptly terminated foster placement through Catholic Social Services (CSS) leaving foster parents like Sharonell Fulton, who has fostered more than 40 children, without CSS’s support. NCLA is deeply concerned about this decision excluding a religious organization.
Philadelphia left its policy decision to the City’s Department of Human Services (DHS)—an administrative agency. This is problematic because, in comparison with legislative policymaking, administrative policymaking is unresponsive to the interests of religion—especially relatively orthodox or traditional religion—thus rendering resulting policies unequal and unconstitutional under the the First Amendment’s Free Exercise Clause.
The Commissioner of DHS candidly revealed her prejudice against CSS’s traditional Catholic beliefs, and bluntly refused even to consider an exemption from DHS’s policy. This prejudice confirms the underlying structural problem: that the administrative policymaking process is tilted, at least against relatively orthodox or traditional religion.
This unconstitutional slant of administrative power has multiple components. First, administrative policymakers are unelected and therefore are much less responsive to the needs of ordinary Americans than representative legislators. Second, administrative power has long been devoted to ideals of rationalism and scientism, which means that it tends to be indifferent if not antagonistic to orthodox and traditional religion. Indeed, administrators are usually drawn from the knowledge class—a class defined by education—and they therefore tend to be unsympathetic or even hostile to traditional religious beliefs. As a result, even when administrative policies are equal on their face, they are unconstitutionally unequal because of the process by which they are made.
NCLA urges the Court to recognize the inequality of the administrative process for religious Americans. Equality is the right of all Americans, and religious freedom from discrimination is a foundation of the First Amendment, as the Court recognized in Employment Division, Department of Human Resources of Oregon v. Smith. NCLA argues that the Supreme Court should recognize the prejudice and discrimination that the Third Circuit overlooked, and it should hold Philadelphia’s resulting foster care policy unconstitutional and void.
NCLA released the following statements:
“Religious liberty is fundamental, and it is therefore profoundly disturbing that administrative power threatens this freedom. The administrative policymaking process is skewed against religion—at least against relatively orthodox or traditional religion—and in this case the New Civil Liberties Alliance is asking the Supreme Court to recognize the resulting inequality.”
— Philip Hamburger, President, NCLA
“It is time for the Court to recognize that administrative processes are imbued with inequality and that the resulting policies harm religious Americans and violate the First Amendment. Where, as here, administrative lawmaking occurs in combination with candid hostility toward religious beliefs, the process is inherently tilted against religious Americans and unconstitutional.”
— Kara Rollins, Litigation Counsel, NCLA
NCLA is a nonpartisan, nonprofit civil rights group founded by prominent legal scholar Philip Hamburger to protect constitutional freedoms from violations by the Administrative State. NCLA’s public-interest litigation and other pro bono advocacy strive to tame the unlawful power of state and federal agencies and to foster a new civil liberties movement that will help restore Americans’ fundamental rights.
October 30, 2020 | Our Anti-Catholic Administrative State by Philip Hamburger
Notwithstanding the all-consuming salience of the election, two days afterward the Supreme Court will consider another fateful question in Fulton v. City of Philadelphia. On the surface, the case concerns a city commissioner’s candid animosity toward traditional Catholicism. But it also involves a much deeper problem—the systemic administrative slant against orthodox Americans.
In Fulton, the commissioner of Philadelphia’s Department of Human Services barred Catholic Social Services (CSS) from placing foster children—allegedly because CSS discriminated against gay families. But CSS has never engaged in such discrimination. Families seeking foster children choose the charities through which they want to secure a placement, and gay families have not thus far chosen CSS.
Instead, the discrimination in Fulton came from the commissioner, who preemptively barred CSS from providing placements on account of its religious views on gay marriage. In explaining her decision, she asserted that CSS should follow “the teachings of Pope Francis” and said that “times have changed,” “attitudes have changed,” and it is “not 100 years ago.”
Thus, notwithstanding that Philadelphia claims to be fighting Catholic discrimination against gay families, the only discrimination thus far has been administrative discrimination against Catholics, accompanied by open religious animosity. Fulton therefore comes to rest on personal prejudice and, more substantively, on structural administrative discrimination against traditional Catholicism and other orthodox beliefs.
Voting. How is administrative policymaking discriminatory? Administrative power leaves ordinary Americans, including religious Americans, with no opportunity to vote for or against their administrative lawmakers. Unelected bureaucrats can impose policies without concern about being voted out of office. Unsurprisingly, they feel less accountable than elected legislators to religious and other ordinary Americans.
This isolation of policymakers from politics was, of course, one of the reasons for establishing the administrative state. It is often said that the goal was to protect experts from political pressure, but from the outset, an underlying aim was to cut ordinary Americans out of key decision-making.
The difficulty, from the perspective of many educated and genteel Americans, was that religious, ethnic, and racial minorities increasingly enjoyed political power. Writing in “The Study of Administration” (1887), Woodrow Wilson—founding father of the American administrative state—worried that, because of the nation’s diversity, the reformer needed to influence “the mind, not of Americans of the older stocks only, but also of Irishmen, of Germans, of Negroes.” Thus, “in order to get a footing for new doctrine, one must influence minds cast in every mold of race, minds inheriting every bias of environment, warped by the histories of a score of different nations, warmed or chilled, closed or expanded by almost every climate of the globe.” Rather than try to persuade such persons, Wilson welcomed administrative governance. The people could still have their republic, but much legislative power would be shifted out of the elected legislature and into the hands of the right sort of people.
Even if Wilson’s overt prejudice no longer infected administrative power, administrative power would remain systematically discriminatory, because removing legislative power from the representatives of a diverse people has implications for minorities. Individually, administrators may be concerned about all Americans, but their power is structured in a way designed to cut off the political demands with which, in a representative system of government, distinctive communities—be they local, ethnic, racial, or religious—can protect themselves.
Of course, all ordinary Americans suffer this exclusion from the political process. But other layers of the problem give it a distinctive slant against many religious Americans.
Voice. In addition to being at the mercy of bureaucratic policymakers who are not worried about their votes, religious Americans cannot speak out in the same way as their fellow citizens because of the Internal Revenue Code. Section 501(c)(3)—supplemented by Section 170—limits religious organizations from fully participating in political speech that might influence voters or legislators. Religious Americans thus lose not only voting, but also voice.
The administrative control of speech under the Internal Revenue Code does not equally affect all religions Americans; it has particularly severe consequences for individuals who are relatively orthodox—that is, for persons who are distinctively dependent on their religious organizations to express their views in politics. Such persons are doubly excluded from the political process—both in being unable to elect their administrative lawmakers and in being unable to engage in full political persuasion through their religious organizations.
It is no coincidence that this pair of speech restrictions especially affects orthodox Americans and Catholics, for these restrictions were first proposed by the KKK. In the 1920s, Imperial Wizard Hiram Evans led his organization to national fame and influence in part by aligning it against Catholicism and other theological orthodoxies. Although the KKK was in decline by the 1930s, Evans still espoused its agenda, not least the goal of attacking ecclesiastical speech in politics. Like many other nativists, he saw the Catholic Church as the prototypical danger, but more generally sought to suppress any political speech by churches and related organizations.
Evans therefore proposed in 1930 that churches should be barred from influencing voters and legislators. Four years later, Congress subjected nonprofits to one of these limits (confining speech influencing legislation). Two decades later, it adopted the other restriction (barring speech on voting). It is thus no accident that Catholics and other relatively orthodox Americans have been limited in their voice. Nativists had long sought to limit their participation in politics, and when the Klan became the most politically influential nativist organization, its leader proposed such limits.
Ethos. Accentuating this dual exclusion from the political process is the administrative ethos of rationalism and scientism, which tends to be unsympathetic to religion, especially relatively orthodox religion.
This is not to say that administrators are necessarily personally prejudiced—though some (as in Fulton) clearly are. Nor is it to dispute the value of reason and science. But rationalism and scientism are not the same as reason and science, and because of these -isms, administrative bodies have institutional commitments that make them indifferent and even hostile to much religion—at least as compared to the attitudes of elected legislatures.
The prejudice has been a central feature of administrative power since its inception. When Wilson enumerated those who were not of the “older stocks” and were thus difficult for someone like him to persuade, he began with “Irishmen.” And administrative power continues to serve anti-orthodox and especially anti-Catholic prejudices, as the bureaucratic expressions of religious animosity in Fulton demonstrate. Religious prejudice and discrimination have no place in American law—except, apparently, if they are administrative.
The resulting difference between representative and administrative policymaking is painfully clear. When a legislature makes laws, the policies that bear down on religion are made by persons who feel responsive to religious constituents and who are therefore usually open to moderating the laws or offering exemptions.
In contrast, when policies come from administrative agencies, they are made by persons who are chosen or fired by the executive, not the public, and so are less responsive than legislators to the distinctive needs of a diverse people. The bureaucrats, moreover, are protected from the full extent of political opinion by a tax code that limits the ability of orthodox Americans to voice their arguments through their ecclesiastical organizations. Such Americans cannot fully present their views either to the bureaucrats who control their lives or even to the legislature, which allegedly oversees the bureaucrats. Topping it off, the unelected and unreachable bureaucratic policymakers are expected to maintain an ethos of scientism and rationality, which—however valuable for some purposes—is indifferent and sometimes even antagonistic to relatively orthodox religion, let alone the particular needs of local religious communities.
None of this is to suggest that government should disregard education, science, or any resulting expertise. Agency knowledge can be valuable. But the shift of regulatory power from elected legislatures to systemically unsympathetic administrative agencies has discriminatory consequences. On the surface, administrative policies tend not to discriminate against religion. But when the underlying policymaking process is discriminatory, even facially equal policies will tend to be slanted. Administrative power is a tilted game—at least for relatively orthodox Americans.
Although the Supreme Court may be hesitant to address so sobering a problem, the justices need to acknowledge it. Religious discrimination is structurally embedded in administrative power, and if Americans must live with this discrimination every day, it is not too much to ask the justices to recognize the injustice.
Originally published in First Things on October 30, 2020.