Spheres of Liberty and Free Exercise: Lessons for Fulton from Jefferson’s Correspondence with Ursuline Nuns
I am happy to pass along this guest post from Professor Stephanie Barclay (Notre Dame). She writes about the history of the Free Exercise Clause, and how it affects Fulton v. City of Philadelphia.
From an originalist perspective, how should we think about protections for individual rights when government has expanded to regulate spheres of society that were dominated by private activity during the Founding-era? This question is relevant in many constitutional contexts, but it has particular salience for the meaning of Free Exercise protections in Fulton v. City of Philadelphia, a case the Supreme Court will hear oral argument in this week. This post discusses a historical example involving the Ursuline nuns in New Orleans that may shed light on this question. But first, it’s helpful to understand how this issue arises in Fulton.
One of the issues before the Supreme Court in Fulton is whether the government has the right to exclude a Catholic ministry from providing foster care services to vulnerable children. Catholic Social Services (CSS) has been engaged in providing foster care for over 200 years in Philadelphia. Some might say that CSS basically invented the practice in the City.
In the 1790s, Philadelphia was hit hard by the yellow fever epidemic, and countless children were suddenly left parentless. (As an interesting side note, the Supreme Court actually shut down one of its terms because of the severity of this outbreak.)
In response to this crisis, religious groups, including Catholics and Jews, established orphanages in the area. The first Catholic orphanage in Philadelphia—and one of the first orphanages in the United States—was founded in 1798. See Timothy A. Hacsi, Second Home: Orphan Asylums and Poor Families in America 18 (Harvard 1997). The Sisters of St. Joseph took over St. John’s Orphan Asylum in 1847, and by 1910 they were caring for 26,000 children in the City. This ministry included foster care, where the Catholic Children’s Bureau would find homes for children in need instead of just keeping them in an orphanage.
Over time, the government became more involved in foster care. Today, the government exercises exclusive control over the power to remove children from their homes and to decide which agencies get to provide core foster care services to families that take in foster children. For example, CSS’s representative testified in proceedings below that it would be “breaking the law” for that agency to provide foster care services to foster families without a contract. And the City acknowledged that the foster families currently relying on CSS must either “find a new agency” to work with, or stop fostering children.
This government control of foster care itself hasn’t necessarily been a problem, until just two years ago when the City sought to close CSS down unless it agreed to violate its religious beliefs and certify same-sex couples. No couple had ever actually asked for this service from CSS, but the City still wants a commitment in advance that CSS would be willing to violate its beliefs as a condition of being able to continue serving foster families in the City. Because CSS couldn’t agree to violate their religious beliefs about marriage, they now stand to lose the ability to continue their longstanding foster care ministry.
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