Supreme Court Grants Realtors’ and Landlords’ Petition for Relief from Stay of Judgment Vacating CDC Eviction Moratorium as Unconstitutional

Alabama Association of Realtors, et al. v. U.S. Department of Health and Human Services, et al., No. 21A23. Order granting emergency petition for relief from stay issued August 26, 2021.

The Supreme Court has lifted the stay of the United States District Court’s judgment vacating the Center for Disease Control order imposing a nationwide mortatorium on evictions. 

It is not only rare that the Supreme Court would reach down to a trial court to vacate that court’s order during the pendency of appellate litigation, it is even more rare that the Court would so forcefully tip its hand concerning the likely outcome should the merits of the litigation be reached:   The CDC’s exercise of power in issuing the eviction moratorium was so far outside its authority that, with respect to the likelihood of success of the realtors’ and landlords’ challenge, “it is difficult to imagine them losing.”  (Per Curiam opinion, p.5).  

Should a nationwide eviction moratorium remain desirable, Congress must specifically authorize such a measure. 

Three justices dissented, citing changed conditions supporting the issuance of a new eviction moratorium and finding that the statute granting the CDC powers to act to control communicable disease support the eviction moratorium orders.

21A23 Alabama Assn. of Realtors v. Department of Health and Human Servs. (08_26_21)

 

 

The United States Urges the Supreme Court to Keep the CDC Eviction Moratorium in Effect

Alabama Associaion of Realtors, et al. v. U.S. Department of Health and Human Services, et al., No. 21A23.  Response of the United States submitted August 23, 2021.


Today the United States submitted to the Supreme Court its view that the judicial stay of an order vacating the Centers for Disease Control (CDC) Eviction Moratorium must remain in place during pending litigation.  The government argues that the circumstances surrounding the August 3, 2021 order halting certain evictions differ from those presented during the first, and later extended, moratorium order. The government argues that equity favors the stability the stay provides, while the realtors and landlords impacted by the CDC orders cannot establish that they will be irreparably harmed by preserving the status quo.

Times Have Changed.  The United States disputes the conclusion reached by the United States District Court for the DIstrict of Columbia that the August 3, 2021 is materially the same as its predecessor, pointing to the emergence of the highly transmissible Delta variant of the Covid-19 virus, which, the government submits, provided the impetus for issuing a new CDC eviction moratorium order days after an earlier order, determined to have been unconstituional, lapsed by its own terms.  In support of its position, the government points to a reported increase in illness subsequent to the issuance of the new moratorium.  

Neither the September, 2020 nor the August, 2021 CDC Orders Is Legally Flawed.  The United States, on behalf of the Department of Health and Human Services (HHS) and its component, the Centers for Disease Control, argues that the legislature conferred upon HHS broad powers to take measures to inhibit the spread of contagious diseases, including the implementation of the eviction moratorium.  Given that HHS may plainly issue orders of quarantine, it would be unseemly to conclude that HHS could not forbid landlords from evicting tenants during a pandemic.  

The idea that the legislature needed to be more specific in its delegation of powers cannot succeed, the United States observes, where the 2021 Appropriations Act relied upon the  legislation authorizing emergency public health measures in order to appropriate funding to make landlords whole.  This incorporation recognizes the aptness of reliance on the earlier legislation, making further legislative specificity unnecessary. 

Neither Commerce Clause nor non-delegation arguments can prevail where it has been established that measures inhibiting the interstate transmission disease are permitted and where broad powers to act “in the public interest” have been upheld.

The Moratorium Suits the Circumstances.  In ordering relief from forced evictions, the CDC observed that evictions would force persons and families into homelessness, causing them to be housed in temporary shelters or other places where crowding would increase the risk of contagion.  Most importantly, the government argues, the August 3, 2021 order applies only where there exist high risks of contagion and only to those unable to meet their obligations to their landlords.

The Greatest Good for the Greatest Number.  The government and the people will suffer greatly if the government’s current plan to freeze evictionsis disturbed.  Property owners, on the other hand, have not been able to provide reliable evidence of their losses, for which, in any case, the government has promised financial assistance. 

What Might Have Been Is Not What Is.  The United States resists the position taken by realtors and landlords that Judge Kavanaugh’s observation that he would have granted review earlier if he were not assured that the eviction moratorium would expire at the end of July now compels the Supreme Court to grant review and to vacate the stay.  Remarks made in support of denying review cannot now be transformed into an indication that review would have been granted had matters been otherwise.  Not only do new facts support the new CDC measures, but in the absence of a controlling opinion a litigant may not, by pointing to a concurrence in support of an earlier denial of review, later recast that concurrence as a vote supporting review. 

Time of Ruling Unknown. The case docket does not now disclose any activity beyond the present submissions of the parties.   

Alabama Association of Realtors v. HHS, No. 21A23 Response in Opposition

Having Twice Failed to Uproot the Stay that Keeps the CDC Eviction Moratorium in Place, Realtors Association Again Seeks Emergency Relief in the U.S. Supreme Court

Alabama Association of Realtors, et al. v. U.S. Department of Health and Human Services, No. 21A23.  Application to vacate stay submitted on August 20, 2021.  Government to respond by noon on August 23, 2021.


Applicants Alabama Association of Realtors have filed in the United States Supreme Court an application for emergency relief which would vacate the U.S. District Court’s May 14, 2021 stay of its May 5th order vacating the Center for Disease Control (CDC) moratorium on evictions.

The emergency application was submitted the same day that the United States Court of Appeals for the District of Columbia Circuit denied relief from the stay for the second time.

Applicants argue that not only has the United States District Court for the District of Columbia found the CDC eviction moratoria to be unconstitutional, but also that the executive branch has admitted this to be true, but has nonetheless encouraged litigation as a delay tactic in the hope of distributing billions in rental assistance monies through the states.  

When the initial series of eviction orders lapsed on July 31, 2021, Congress failed to specifically authorize the CDC to exercise the power that it has, which legislative action Associate Justice Kavanaugh opined would be needed going forward when he denied review only because the government promised the Court that the eviction orders would end on July 31, 2021.  As this was clearly not the case, relief is now warranted, the applicants submit.

Permitting the stay to remain in place would undermine confidence in the federal government internally and in the eyes of the nation, as it would allow legislative inaction to promote admittedly unconstitutional administrative action and let the Court know its views are of no consequence.

The ongoing presence of a federal moratorium represents both an assault on the integrity of the system of government itself but also a tectonic shift in the exercise of powers affecting the rights and interests of property owners.  The eviction moratorium has been promulgated by a sovereign which is immune from suit and which will resist takings actions, provides benefits to those who are admittedly judgement-proof, and criminalizes landlords’ actions to protect their property through eviction proceedings.  Any financial benefit, in the form of rental assistance, has been lost in bogs of state bureaucracies charged with distributing the funds.

The realtors association argues that the same factors that warranted emergency relief that were present before are present now and then some.  Any reliance on ‘changed conditions’ manifested by the Delta variant of the Covid-19 virus is misplaced, as the government was aware of the Delta variant when it permitted the CDC order to lapse on July 31, 2021, and the harms predicted from the variant have failed to materialize.

The applicants note that the idea that money damages will make landlords whole is not supported in law or fact.  The Administrative Procedures Act does not permit an award of money damages, and the costs of compliance with an unlawful regulatory regimen are incapable of being fairly compensated. 

 

Alabama Association of Realtors, et al. v. HHS, No. 21A23 Application for Emergency Relief August 20, 2021

D.C. Circuit Orders Stay of Constitutionally Defective Eviction Moratorium is to Remain in Place

Alabama Association of Realtors, et al. v. U.S. Department of Health and Human Services, et al., No. 21-5093 (D.C. Cir.) Order denying emergency motion for stay filed August 20, 2021.


The United States District Court for the District of Columbia Circuit today denied an emergency motion to vacate the stay of the U.S. District Court’s order vacating the CDC Eviction Moratorium.  The court noted that it had previously denied such relief and that the federal district court had denied relief as well.

Whether review in the U.S. Supreme Court will be sought is not known at this writing.

Alabama Association of Realtors, et al. v. HHS 21-5093 Order August 20, 2021

The Stay Must Go: Realtors Seek Emergency Appellate Relief from Stay of Order Holding CDC Eviction Moratorium Unconstitutional

Alabama Association of Realtors, et al. v. U.S. Department of Health and Human Services, No. 21-5093 (D.C. Cir).  Parties jointly request ruling on petition for emergency relief by August 19, 2021.


Plaintiffs/appellees seek emergency relief in the D.C. Circuit Court of Appeals from the federal district court’s May 14, 2021 issuance of a stay pending appeal of its order vacating as unconstitutional a CDC Eviction Moratorium. On June 2, 2021, the D.C. Circuit Court of Appeals declined to disturb the district court’s stay, finding that the district court did not abuse its discretion in entering a stay pending appeal.

Last week the U.S. District Court determined that the newly-issued August 3, 2021 Center for Disease Control eviction moratorium is as defective as its predecessor, which lapsed on July 31, 2021. The court found that its earlier order of vacatur of the old CDC eviction order could embrace the new CDC eviction moratorium.  However, the  court concluded that it could not give life to its determination because the court could not vacate its own order staying its order of vacatur of the old CDC eviction order because the D.C. Circuit had concluded that the district court’s stay of its order of vacatur pending appeal was not an abuse of discretion. The appellate affirmance of the stay, the federal district court concluded, bound the court under the doctrine of the “law of the case.”. 

The realtors now argue that the “law of the case” does not apply to the stay in this case, as the doctrine concerns only matters actually decided in a case, not interim measures intended to preserve the status quo pending a determination on the merits or on appeal.  The government insists that “[T]he same issue presented a second time in the same case in
the same court should lead to the same result.” (Citation omitted.) 

Both parties have submitted previews of their merits arguments and have requested an expedited briefing schedule subsequent to the appellate court’s ruling on the emergency petition. 

Plaintiff/Appellees’ Submission Contains a Compilation of Previous Arguments and Rulings:

Alabama Associaton of Realtors et al v. HHS, No. 21-5093 Emergency Motion

The government’s response:

Alabama Association of Realtors et al v. HHS No. 21-5093 Opposition to Motion for Emergency Relief

New CDC Eviction Moratorium Is Defective, But Federal District Court Cannot Vacate Its Earlier Stay Where the Order of the D.C. Circuit Court of Appeals Upholding that Stay Is the Law of the Case

Alabama Association of Realtors, et al. v. U.S. Department of Health and Human Services, No. 20-0377-DLF.  Opinion and Order issued August 13, 2021.


The federal district court in the District of Columbia has compared the August 3, 2021 Order of the Centers for Disease Control imposing a nationwide stay of evictions until October 31, 2021 and found it to be not materially different from the order preceding it, which has been found to be, and has been admitted to be, constitutionally defective.  

Were it possible to do so, the federal district court said today, the court would enter an order similar to the order of vacatur issued previously.  The court cannot do so, however, because the United States Court of Appeals for the District of Columbia Circuit refused to disturb the district court’s earlier stay of its order of vacatur.  The appellate court’s refusal to grant relief, which left the district court’s stay of its order of vacatur in place, is the law of the case which the district court may not now ignore. 

The appellate court and the district court were not of the same analytical minds with respect to the initial stay, but this is of no moment at this time.  Plaintiffs’ recourse is in the appellate court or in the United States Supreme Court.  

There is Need for a Meta Crystal Ball.  It is not known at this time whether the plaintiffs will once again seek relief in the United States Supreme Court prior to seeking relief or continuing its current appeal in the D.C. Circuit Court of Appeals.  Although the United States Supreme Court denied plaintiffs’ earlier petition, Justice Kavanaugh opined that he would have agreed with the justices who would have granted relief but for the imminent expiration of the first Centers for Disease Control Order.   While plaintiffs in this case asserted that Justice Kavanaugh’s opinion in essence created a majority that would grant relief, the United States argued the concurrence in denying relief could not be transformed into one granting relief, as plaintits wished, a position with which the district court has agreed.  As the other justices’ votes are known publicly, but their analyses and opinions are not, assessment of a likely outcome if relief were sought first in the Supreme Court will no doubt provoke much discusson. 

JustLawful Observation: Whether in the present posture of the case plaintiffs will renew their request for relief in the United States Supreme Court rather than in the D.C. Circuit Court of Appeals is, of course,  a matter of speculation.  While much of today’s ruling may have too much of a “yes-but-no” flavor, and seem to rely on jurisprudential concepts pleasing to judges and lawyers but confounding to the public, there may be some comfort in considering that it is likely that not too much time will pass before the next round of litigation begins.  

Alabama Association of Realtors, et al. v. HHS, No. 20-0377Memorandum Opinion and Order dated August 13, 2021

Nixxing Ipse Dixit: U.S. Supreme Court Finds New York’s Covid-Related Tenant Financial Hardship Self-Certification Provisions Deny Landlords Due Process

Chrysafis, et al., v. Marks, No. 21A8.  Order granting injunctive relief pending disposition in Second Circuit or of Petition for Certiorari entered August 12, 2021.  


New York’s pandemic related tenant protections preclude eviction if a tenant self-certifies to financial hardship.  Landlords may not challenge such self-certifications.  This, the U.S. Supreme Court has concluded, impairs landlords’ due process interests, as established law has observed that “no man may be a judge in his own case.”  Order of August 12, 2021, citing In re Murchison, 349 U. S. 133, 136 (1952).  

By order entered August 12, 2021,  the Court has enjoined the preclusive effect of tenant self-certifications pending further judicial activity but has left undisturbed the capacity of courts to make assessments of financial hardship in eviction proceedings.  Such assessments could permit receipt of pandemic-related financial aid and could preclude eviction.

Justice Breyer, with Justices Sotomayor and  Kagan,  has dissented, opining that there is no basis in the law for the U.S. Supreme Court to reach the constitutionality of a state law measure which has not been enjoined by a state court, where there has been no determination in the Second Circuit Court of Appeals, where the emergency eviction measures will lapse of their own accord at the end of August, where there is available $2 billion dollars in federal rental assistance, and where landlords are not denied, but only delayed, a hearing, a circumstance which does not violate constitutional due process principles.  

Justice Breyer’s dissent notes that there is no First Amendment compelled speech issue presented by the state’s requirement that factual information be provided to tenants. 

While it is recognized that emergency measures are not wholly insulated from judicial review, it is Justice Breyer’s sense that in this circumstance, where any right to relief is not clearly established, where tenants may face displacement earlier than anticipated, and where the state must craft and administer many scientifically and medically complex emergency measures, the public interest would favor deference to the state.  

The U.S. Supreme Court’s decision has been presented to the federal court in the District of Columbia for consideration in connection with the court’s anticipated ruling on a challenge to the new federal eviction moratorium.

U.S. Supreme Court docket showing entry of order:

21A8 U.S. Supreme Court Docket

Order entered August 12, 2021

CHRYSAFIS . v. MARKS, U.S. Suprerme Court Order with Dissent August 12 2021

Submission to U.S. District Court for the District of Columbia:

Alabama Association of Realtors v. HHS, 20-03377, Notice of Supplemental Authority

Alabama Association of Realtors v. HHS, 20-03377, Exhbit A.

20% Off Is Still 100% Unconstitutional: Realtors Argue that Novel Iteration of CDC Eviction Moratorium Is as Lacking in Authority as its Precursor

Alabama Association of Realtors, et al. v. U.S. Department of Health and Human Services, No. 20-cv-03377 (D. D.C.). 


Emergency!  Last spring plaintiff realtors and related organizations were successful in persuading the U.S. District Court for the District of Columbia that the September, 2020, Order of the Centers for Disease Control imposing a national moratorium on evictions was without authority.  The court found no authority for such a sweeping measure in the public health law that served as the order’s premise, nor could the court find any legislative delegation of authority that would permit the Centers for Disease Control to criminalize rental property evictions. 

The D.C. District Court vacated, yet stayed, its order pending review.  The U.S. Court of Appeals for the District of Columbia Circuit refused to disturb the federal district court’s determinations, and the United States Supreme Court denied emergency review.

The denial of review, however, came with Justice Kavanaugh’s concurring caveat: he agreed that the eviction moratorium order was unconstitutional but sensed that it was best to let the order lapse of its own accord at the end of July, as the Centers for Disease Control represented to the Supreme Court that the moratorium would not be extended further. 

Post-Moratorium Hubbub in the Executive and Legislative Branches.  The President of the United States stated publicly that he had been advised that the eviction moratorium was unconstitutional. A valid moratorium would require, as Justice Kavanaugh pointed out, legislative authority, which Congress failed to enact. 

The President begged the states to disburse the $45,000,000,000 that the federal government had provided in assistance to troubled tenants but which appears to have been bogged down in bureaucracies.  

This Time It’s Different.  On August 3, 2021, the Centers for Disease Control issued a new order prohibiting evictions in areas deemed to be highly affected by a variant of the contagious Covid-19 virus that prompted the initial moratorium.  This “Delta” variant, the Centers for Disease Control has predicted, is highly contagious and its threat to interstate transmission justifies federal intervention on a limited basis, which the Centers for Disease Control now sets at about 80% of all counties nationally or 90% of all rental housing in the United States.

Lack of Constitutional Authorization Remains. Plaintiffs argue that the fundamental lack of authorization for the Centers for Disease Control’s new order persists: no geographic or statistical tinkering can imbue the order with the constitutional soundness it lacks.  

It’s Not the Principle of the Thing, It’s the Money. That the Executive Branch is in accord with the view that the prior order was unconstitutional  makes the new order all the more curious except that the President has stated that he hopes that litigation will buy some time to move relief to intended recipients.  

Fuzzy Math.  The U.S. Department of Health and Human Services, of which the Centers for Disease Control is a component, has opposed emergency relief now because, the government argues, the plaintiffs’ assertion that the precedent it finds in Justice Kavanaugh’s concurrence is not precedent at all.  The government argues that a concurrence that can be seen as aligned with those who would have granted relief cannot transform the minority of judges who would have granted review into a majority.  

As Then, So Too Now.  Defendants argue that as there is no Supreme Court precedent binding the district court the law requires that the D.C. Circuit Court of Appeals opinion on the stay controls.  The district court should not disturb its earlier stay, the government argues, but the court must recognize that its earlier vacatur of the first CDC order is of no moment, either, as circumstances have so changed that the court’s initial conclusions would not apply now.  

Deference, Please. Moreover, the Centers for Disease Control submit that the district court should abstain from any action to permit the Solicitor General of the United States to determine whether to seek emergency review in the D.C. Court of Appeals or the United States Supreme Court.

There May Be More to Come. The plaintiffs may file a reply to the government’s opposition by August 6, but at this time none is of record.

Centers for Disease Control Order Dated August 3, 2021:

CDC Eviction Order

Realtors’ Emergency Motion:

Emergency Motion to Enforce the Supreme Court’s RulingyDefendants’ Opposition

Defendants’ Opposition to Plaintiffs’ Emergency Motion

Order of U.S. Supreme Court Denying Review of Eviction Moratorium

Order Denying Application to Vacate Stay June 29, 2021

Fundamental Fairness Compels Cosby’s Release, Supreme Court of Pennsylvania Concludes

Commonwealth of Pennsylvania v. William Henry Cosby, Jr., No. J-100-2020.  June 30, 2021.  


A Life of Unprecedented Firsts and Widespread Public Acclaim. Bill Cosby enjoyed a career marked by achievements in comedy, in acting, and in education.  Following success as a stand up comedian, he was the first African American to star in a nighttime drama, I Spy.  Later, the long-running Cosby Show, in which he played a sometimes perplexed, but always lovable, sweater-wearing physician, endeared him to millions.  Cosby was not infrequently referred to as “America’s Dad.”

 

Dad Would Never. Surrounded by accomplishments and accolades, the notion that Cosby was anything other than that which he appeared to be in public was unthinkable until the early years of the new millennium.

 

Very Tough Love. Theretofore relentlessly anodyne, in 2004 Cosby lambasted African Americans for what he perceived to be life limiting choices and woeful parental skills.  Notwithstanding that Cosby asserted that his intention was to proffer help, his thoughts were not well received.  

 

Very Little Love (Or So It Would Appear). That same year Cosby engaged in a personal relationship with a woman at Temple University.   Although Cosby asserted that all his activity was consensual, the woman believed that she had been drugged and sexually assaulted, and was unable to consent. 

 

Concerned about the impact that the relationship with Cosby had had on her, Andrea Constand complained to local police. 

 

No Criminal Case. On review of Constand’s complaint and conduct, as well as a statement by Cosby, the District Attorney for Montgomery County, Pennsylvania, concluded in 2005 that the available evidence was not sufficient to ensure a conviction.

 

But Perhaps a Successful Civil Suit. By his own account, the District Attorney believed that while he could not be certain of a criminal conviction against Cosby, he could facilitate a civil suit for money damages for Constand if he declared he would not prosecute Cosby.  If there were no possibility of prosecution, Cosby in turn would not be able to avail himself of his Fifth Amendment right against self-incrimination.  

 

Telling the World. With the idea of removing any Fifth Amendment protections from Cosby in a civil proceeding, the District Attorney issued a press release describing to the public his decision that his office would not prosecute Bill Cosby based on the investigation and the evidence then known.  

 

No Compliance with Statute or Protocols. The sole promise made by the District Attorney was in the press release. There was no court order of immunity sought or obtained, nor was three any writing describing any immunity conferred upon Cosby.

 

Testimony Under Oath. In later civil suits, Cosby was deposed on several occasions, during which he never asserted any Fifth Amendment privilege and during which he made statements that were self-incriminating.

 

A Decade Hence, Things Were Perhaps Not Exactly What Was Had in Mind. Ten years after the Constand complaint and the promise of non-prosecution, a new District Attorney reopened the case based on the public release by a Federal judge of Cosby’s previously sealed deposition testimony.  

 

#MeToo and #MeToo and #MeToo. As interest in Cosby’s conduct gained momentum, one woman after another disclosed that she believed that she had been drugged and sexually assaulted by Cosby.  The allegations spanned decades, some reaching back to the 1960s.  Some, but not all, of the accounts were admitted in evidence at Cosby’s second trial. 

 

A Matter of Record. Cosby was convicted of aggravated indecent assault in 2018, in a second trial following a 2016 mistrial.  

 

And Now the Reversal.  Within recent weeks Cosby’s conviction has been vacated and he has been released from prison.  

 

Justice Delayed or Justice Denied. This latest result is no doubt unthinkable to those who believed that Cosby’s conviction represented a measure of justice, however belated, not only for those who felt themselves personally victimized by Cosby, but also for those persons everywhere who have suffered sexual assault, ofttimes in decades-long silence.

 

Justice is for the Next World: In this World, There is the Law. The Supreme Court of Pennsylvania, having reviewed all the proceedings, concluded that the District Attorney’s deliberate inducement caused Cosby to forfeit his constitutionally guaranteed right against self-incrimination. Moreover, the District Attorney had no power to bind those who would succeed him.  

 

Induced and Abandoned. The appellate court concluded that the District Attorney’s inducement, in the form of a press release announcing there would be no prosecution, which was relied upon by Cosby, so offended principles of fundamental fairness, which the law considers to be the foundation for all due process, that the only way to make Cosby whole was to set aside the conviction and set Cosby free.

 

The Pennsylvania Supreme Court’s opinion was not unanimous.  Two judges concurred and dissented at once, opining that Cosby ought to be tried a third time, with any evidence introduced in error in the prior trials suppressed.  

 

One judge dissented from the result in its entirety, questioning the soundness of the court’s conclusion that the District Attorney made an unconditional promise by means of a press release.  Moreover, the Court’s speculation about the District Attorney’s intent to gull Cosby into forfeiting his Fifth Amendment rights was contrary to sound jurisprudence. 

 

Nonetheless, the dissenting judge agreed that were circumstances as the majority described them, prosecutors would have boundless capacities to trample on individuals’ constitutionally protected interests. 

 

In addition, the dissent perceived that the trial court erred in admitting evidence of prior assaults, as the evidence was unduly inflammatory, and the dissent would have been inclined to order a new trial on that basis.

 

The News May Be Bad, but the Law May Be Good.  Appellate decisions exist to refine the law.  While the release of Cosby may disappoint, the release had nothing to do with Cosby’s conduct, memorialized for all time in the opinion. 

 

The result had everything to do with the prosecutor. 

 

In this light the opinion is a clarion call to prosecutors everywhere to be prudent in their dealings with defendants, with the courts, and with the public, to be scrupulously truthful and trustworthy, and to be no larger than the office and the law allow.   

Commonwealth v Cosby (Pa. 2021). Wecht, J. for the Court

Commonwealth v Cosby (Pa 2021). Dougherty, J., Concurring and Dissenting.

Commonwealth v Cosby (Pa. 2021). Saylor, J., Dissenting.




Justices’ Disappointments Surround Supreme Court’s Decision that Free Exercise Clause Permits Exemption from Philadelphia’s Foster Placement Policies

Fulton, et al., v. City of Philadelphia, et al., No. 19-123.  Opinion of the Court by Roberts, C.J., issued June 17, 2021.


The Catholic Church has long been involved in providing services to children in need.  Until recently, Catholic Social Services of Philadelphia, under contract with the city, evaluated potential foster parents and made recommendations to the city for placement.  However, when Catholic Social Services disclosed that it would not certify same-sex couples for placements, Philadelphia determined that it would not enter into another contract with Catholic Social Services unless Catholic Social Services would agree to certify same sex couples for foster care service.

Litigation ensued, notwithstanding that no same sex couple has ever requested or been denied certification by Catholic Social Service.

A federal district court denied  Catholic Social Services request for injunctive relief, finding that the agency was unlikely to prevail on either a Free Exercise or Free Speech claim, as a neutral law of general applicability is not subject to Free Exercise challenges, and Free Speech principles were inapplicable where the social services agency was certifying for a government agency.

The Third Circuit agreed.  The Supreme Court granted certiorari, having in mind whether or not it ought to overrule Employment Division of the Department of Human Services of Oregon v. Smith, 494 U.S. 872 (1990).

Employment Division of the Department of Human Services of Oregon v. Smith (“Smith”), supra, held that neutral laws of general applicability are not subject to Free Exercise challenges.

In this case, the Supreme Court declined to revisit Smtih, deciding instead that because Philadelphia’s contract with Catholic Social Services included the potential for exemption from same-sex services, the possibility of exemption removes the agreement from consideration as would apply to “neutral laws of general applicability”.  

The Supreme Court found it unquestionable that Philadelphia’s refusal to enter into an agreement with Catholic Social Services, and its retroactive rejection of certifications already made, substantially burdened religious exercise by forcing Catholic Social Services to exercise its faith and refrain from providing services to the city, or by abandoning its faith and providing those services.

The Court could find no compelling reason for rejecting Catholic Social Services, particularly as no harm could be envisioned from continuing to accept their services.  If a request for certification of a same-sex couple were presented, that request could be presented instead to another agency that could accept the couple. 

The Court rejected Philadelphia’s arguments that it ought to have more latitude and received more deference in Free Exercise matters when the city acts in a managerial capacity.  The Court found no basis in the law for abandoning constitutional principles on the basis of the City’s role.

Heckling the Umpire.  The Court’s narrow decision in this case precipitated the issuance of three separate concurrences, each reflecting the joining justices’ disappointment in not overruling Smith.  Justice Alito has published a 77-page history of Free Exercise jurisprudence, which includes a scathing assessment of the Court’s opinion, offering that it might as well have been written in disappearing ink.  All Philadelphia needs to do to avert the Court’s decision is remove the exemption language.  This would place petitioners back at the beginning, with another cycle of litigation ahead.

Fulton v. Philadelphia, No. 19-123 (S. Ct.) June 17, 2021