Archdiocese of Galveston-Houston v. HHS

    Currently there are 25,000 children waiting to be placed with foster families in the Texas foster care system.  The Archdiocese of Galveston-Houston is a Catholic ministry in the state that currently does a great deal of charity work with the poor, the widowed, and immigrants in Texas.  All this work they do is motivated by compassion and their Catholic faith.  The Archdiocese of Galveston-Houston would like to expand their charitable efforts by caring for the foster children of Texas and helping to place them with their 'forever families'.  As of now, the Church argues this is not possible.   A 2016 Department of Health and Human Services (HHS) regulation "requires religious foster care agencies to place children with same-sex couples even if doing so would go against their religious beliefs."  The diocese is arguing that this violates existing Texas law that allows foster care agencies to refer couples to other agencies if they cannot work with them due to religious reason.  Clearly, the federal regulation is being enforced over the Texas law in this case.

    The Archdiocese makes a good case for why they would like to help, and more importantly why they are capable of helping.  They have a tremendous amount of resources and in 2018 gave over "25,000 meals to seniors, provided over $10 million in disaster-recovery aid, and filed nearly 4,000 immigrant petitions on behalf of refugees and immigrants."  Given the breadth of their aid, they do not discriminate against most groups.  However, they are admittedly in violation of the HHS regulation regarding foster children and same-sex couples.  They argues however that the HHS is discriminating against religious groups by forcing them to place children with same-sex couples if they were to operate as a foster care service.  Catholic institutions have historically been able to hire and fire people who do or do not follow the beliefs of the church and there is currently a large legal gray area given various religious exemptions.  This often leaves state law to decide such cases, and Texas has limited protections for gay couples.  While the HHS under the Trump administration said they would adjust to rule to allow more religious freedom the Archdiocese of Galveston-Houston is currently taking their case to the Supreme Court to ensure the protection of their free
exercise of religion.

    This case is quite similar to the yet undecided case of Fulton v. Philadelphia  where the city barred Catholic Social Services from placing children in foster homes because they refused to license same-sex couples to be foster parents.

    The key question in this case is whether or not the Catholic Church has a right to discriminate against same-sex couples under the First Amendment's Free Exercise Clause.  In many instances we see the Supreme Court uphold neutral laws that may have an incidental, but not direct, burden on religious action.  In Braunfeld v. Brown (1961) the court ruled against Orthodox Jews who believed that a Sunday closure law limited their free exercise of religion.  In that case the court found that a neutral laws that serves a valid secular purpose was constitutional even if it placed such an incidental burden on religion.  Likewise, in Bob Jones University v. United States (1983) the Supreme Court ruled against certain actions justified as free exercise of religion.  In the Bob Jones case the court ruled that the IRS was constitutionally within its rights to remove a federal tax exemption for the school because of its religiously based discriminatory policies against interracial relationships.  Just like the case of Bob Jones University, the Catholic Church is seeking to discriminate who it provides services to based on sincerely held religious beliefs.  

    However, more recently the Supreme Court has ruled in favor of religion based discrimination based on free exercise.  In Masterpiece Cakeshop, Ltd.  v. Colorado Civil Rights Commission (2017) the court ruled that the Masterpiece Cakeshop owner did have protection under the Free Exercise Clause of the First Amendment to refuse to make a wedding cake for a same-sex couple.

    This case has serious implications for the way the religious organizations including the Catholic Church will be allowed to operate in the United States.  Historically, they have been able to make a wide array of service and employment decisions based on their religious beliefs.  Recent and expanding protections for LGBTQ people in the United States will affect how they may operate going forward.  I believe that the Archdiocese of Galveston-Houston should be allowed to follow Texas law where they can deny their services to same-sex couples on the basis of the Free Exercise Clause, while still being made to refer those couples to other foster care agencies.  As the Archdiocese of Galveston-Houston argues, allowing them to provide foster care will not limit the options of foster parents and foster children, but will instead expand the amount of assistance both will receive.  Forcing the Catholic foster care agencies to violate their sincerely held religious beliefs or not operate at all is a violation of their free exercise of religion.  While the Supreme Court has held neutral laws valid, this regulation is not neutral towards religious groups.  It forces them to operate against their beliefs and therefore violates the Free Exercise Clause.