The Supreme Court has issued a number of significant rulings this term that affect everything from collegiate athletics to adoption agencies.

Among the most notable decisions, the high court ruled 9-0 in favor of religious liberty in the case of Fulton v. City of Philadelphia. The case gives a Catholic social service agency in Philadelphia the right to continue a government-funded foster care program while not being forced to compromise its beliefs about marriage.

The city of Philadelphia “terminated Catholic Social Services’ contract as a foster care placement agency” because the group would not place children with same-sex couples, Heritage Foundation legal fellow Amy Swearer said. The city did that even though “there had also never been a same-sex couple that had ever approached Catholic Social Services about becoming foster parents,” she noted.

Swearer joins the “Problematic Women” podcast to explain how the Supreme Court’s ruling in the Philadelphia case could affect other faith-based adoption agencies. Swearer also breaks down the significance of the court’s recent ruling against the National Collegiate Athletic Association.

Also on today’s show, Marie Fishpaw, the director of domestic policy studies at The Heritage Foundation, joins the show to discuss the Supreme Court’s ruling on Obamacare and what that decision means for Americans’ health care. 

And as always, we will be crowning our “Problematic Woman of the Week.” 

Listen to the podcast below or read the lightly edited transcript.

Virginia Allen: I am so pleased to welcome back to the show Heritage Foundation legal fellow Amy Swearer. Amy, thanks for being here.

Amy Swearer:
Thank you so much for having me. It’s good to be back in the studio.

Allen: I know. It feels all surreal.

What year is it?

Allen: It’s crazy. It’s been a long time since we can actually sit across from one another. All right, so let’s jump into some SCOTUS news. There’s been a lot coming out of the Supreme Court recently. So, let’s begin with a recent ruling that’s really been declared as a big win for religious freedom. The case is Fulton v. City of Philadelphia. Amy, can you just explain this case to us? What exactly was being decided here?

Sure. So, this is a First Amendment free exercise case, and I think to sum it up, and I’m sure we’ll get into this later, it’s more of a narrow victory for religious liberty. But, basically, you’re dealing with the city of Philadelphia and an organization called Catholic Social Services.

So, Catholic Social Services has been in Philadelphia serving that city’s needy children in various different ways since the late 1700s, and for the last century or so, this has included contracting with the city to place children with foster parents, so to set up that interaction between people who want to be foster parents and children who need foster parents. So again, they’ve been doing this for about 100 years.

In 2018, again, after an entire century of doing this, Philadelphia suddenly discovers through a newspaper article, “Oh, my goodness, wait, you’re Catholic. You follow Catholic teaching. You won’t place children with same-sex couples, or unmarried couples, or single couples.” But the big thing was, “You won’t place them with same-sex couples.” So the city terminated Catholic Social Services’ contract as a foster care placement agency, because it said that this violated a city ordinance on nondiscrimination on the basis of sexuality.

So, now keep in mind, there had never been a complaint about Catholic Social Services’ foster care services. Everyone roundly agreed they’d done a very good job with this, but there had also never been a same-sex couple that had ever approached Catholic Social Services about becoming foster parents, and also had any same-sex couple done so, or unmarried couples, single person, et cetera, their policy was to say, “Hey, we can’t do this. We can’t affirm this based on our religious beliefs,” but they would have politely referred them to one of several dozens of other agencies in Philadelphia that would have gladly taken them on and help them become foster parents.

So it’s not as though same-sex couples were left without any other options for becoming foster parents, it was really just the city of Philadelphia suddenly realizing, “Oh, wait, we’re with Catholics. Oh, no!”

Allen: So, as you say, this actually ended up being a pretty narrow ruling for religious freedom. What do you mean by that?

Swearer: So, not to get into the weeds here, but this goes back to a 1990 Supreme Court case called Employment Division v. Smith. And basically what the court did in Smith is, they set some rules for interpreting claims that a law or policy burdens the free exercise of religion. So, it was a very controversial ruling, but basically it said that laws that clearly burden the exercise of religion are fine as long as they’re neutral and generally applicable.

So, what happened, in this case, in Fulton, is that the court took a very narrow approach and they just said, “Well, we don’t think Philadelphia’s actions are generally applicable.” They took this very narrow route, and basically there was a provision in the foster care contract that gave city officials discretion to make exceptions to this non-discrimination rule. They’d never made exceptions. They’re certainly not keen on making exceptions for Catholic Social Services, but because theoretically they could make exceptions, the court said it’s not a generally applicable law, and so, therefore, it violates the First Amendment under strict scrutiny, et cetera, et cetera.

Now what this means is that all the city has to do is essentially go back and rewrite the contract to remove the theoretical exceptions that could be made, and now they get to come back and say, “Well, look, we did what you said. This is now generally applicable. No one can have exceptions.” And the problem is going to be that once that happens, because the court didn’t decide on any “Is this neutral? Is Smith at the appropriate test here?”

Even if something is neutral and generally applicable, does the city still have to show that there is a very good reason for not accommodating them?

Which is what you would think would be the case under the First Amendment. The fact that there are dozens of other agencies, this is not destroying the ability of same-sex couples to become foster parents if we allow Catholics to be Catholics and to continue to uphold the Catholic teaching, but still serve the city of Philadelphia and the needy children.

So, unfortunately, it’s a narrow win. I think this is going to end up quite like, if you remember, the nuns from the Affordable Care Act case, from the Obamacare case, where they just kept having to come back. Time and time again, I think, unfortunately, this is not likely to be the last time we see Catholic Social Services in front of the Supreme Court begging for the free exercise of their religious liberties.

Allen: All right. So, we haven’t seen the end of this. So, I was going to ask you, what are the broader implications for, I know we’ve seen this in Boston with social services as well, Catholic Social Services there and in other cities across the country, but really what you’re saying is, this ruling probably has very, very little impact on them at all.

Yeah. So again, if you have some other organizations where they have these discretionary clauses, I think what you might see is in the immediate future, cities that still want to discriminate against religious organizations remove those clauses and then be like, “Ha, ha, see? We did the magic things and now you’re no longer protected.” This is generally applicable.

But, I think, on the whole, this is going to be something that continues to play out until the courts digs deeper into this and really gets into the merits of, what are the limits of the government’s ability to burden the free exercise of religion when it has many other options for accomplishing its stated goals of nondiscrimination?

Allen: Yeah. Yeah. Wow, interesting. All right. Well, so there’s been so much coming out of [the Supreme Court]. I want to chat a little bit about another First Amendment case, this one involving free speech and a cheerleader from Pennsylvania.

Yes, the angry cheerleader case.

Allen: The angry cheerleader case, yes. All right. So, explain to us what exactly happened here.

So, like you said, it’s another First Amendment case, but this one is about free speech. And specifically it’s about whether, and to what extent, a public school can punish off-campus student speech. So, the short version of this, this is one of the things where you read the fact-finder and you’re like, “How does this end up in the Supreme Court?”

But the short version is that you had a student who became upset that she didn’t make the varsity cheerleading squad, so over the weekend, not during school hours, not on campus, she posts a couple images to Snapchat, the app where you can post images and they disappear after 15 seconds, containing both vulgar language and a vulgar gesture that I won’t elaborate on, and she uses this to express her frustration with the school’s cheerleading program. She sends it to basically a bunch of her friends who are also students and non-students.

The school gets wind of this, the cheerleading coaches get wind of this, and ultimately she is, as a result of her off-campus speech, suspended from the cheerleading program for a year. So, she sues, saying, “Look, I’m being punished by a public school,” which are consider state agents here, “for my off-campus speech, and you can’t do that.” And so, that is the issue that the court is deciding here, that extent to which off-campus student speech can be regulated and punished.

Allen: Wow. So, I mean, it is surprising that we have something like this rise all the way to the level of the Supreme Court, but in many ways it makes sense. This is a big issue with young people increasingly using social media to voice their opinions about school, about employers. This is actually really relevant.

Right. So, this is one of those cases where you look at it and you’re like, “The fact pattern is … ” I think, actually, I had a friend text me this morning like, “This is such a silly case.” I’m like, “It’s a silly fact pattern, but it has very broad implications,” because what the court actually held here is that off-campus student speech is covered by many of the same First Amendment protections as any other adult non-students speech. And that essentially, unless the school can show that there is some serious impact on the school community … .

Obviously, things like combating rampant bullying, specific targeted threats at people, things that are going to seriously upset the balance of community within the school, that it is not protected speech. And so, while in this case it’s an angry student, fairly immaturely dealing with not making varsity cheerleading, the implications go to too many other things, any situation where you have—I mean, think of all the controversial aspects of speech that we deal with in this country that any student who is off campus, who is speaking to a private audience in whatever capacity, that, that is protected speech.

And I think overall, this is a good thing that is going to have broad implications for a lot of students and a lot of contexts outside of cheerleading.

Allen: Yeah. Yeah. Well, Brandi Levy, she won that case, in her favor, justices ruled. Do you know the ruling on that case?

So, I believe it was 8-1. So, you had [Justice Clarence] Thomas dissented. And this was actually interesting, I don’t think a lot of people saw this coming. He looked at, I mean, him being very text, history and tradition, in his view, there’s a long-standing tradition of allowing schools to police student behavior, as the stand-in parent, and that we have this long history of allowing, that seems to be when the 14th Amendment was passed, that this was at the time something that would have been permitted.

So, he was the lone dissent there. But I think on the whole, this is good for students’ speech, and a lot of the controversies that will continue to play out within American society.

Allen: Yeah. Well, want to touch base on one other case, moving up to the college level, that was ruled on earlier this week. The Supreme Court issued a big decision involving college athletics, and the court ruled actually 9-0 against the National Collegiate Athletic Association, saying that they’re not allowed to cap any benefits that are tied to education for a student. So, this has been an ongoing debate: Should college athletes be compensated? And so this isn’t actually saying that they’ll receive a paycheck, but it is saying like they could get a new laptop or increased internship opportunities, that kind of thing.

Swearer: Yeah. So, in some respects it was a shot across the bow to the NCAA, but I think, too, I think a lot of people have misunderstood this as saying college athletes can get paid, that they’re no longer amateurs. It’s much more limited than that. Like you said, it has to do with educational-related benefits. So I think those are going to be broadened for student athletes.

As a former student athlete myself, I know how burdensome some of those restrictions and how arbitrary some of those restrictions could be. I think it’s a step forward for a lot of athletes, in the sense of there is some of that disparity between what money the NCAA takes in, and how much of it actually goes to benefit students.

But again, this is one of those cases. This is just the beginning of what I think will be a long, long line of similar cases building out on that. I think this was just the first, like I said, shot across the bow at the NCAA.

Allen: Yeah. All right. So, Amy, what are some of the cases that we’re still waiting to hear rulings on this term?

So I think one of the big ones is, it’s actually two cases together, but we generally refer to it as Thomas More Law Center v. Bonta. This is a case that a California, once again, the Catholic agencies getting hit over here, where the state of California wants to mandate that all of these charities and nonprofits disclose to the state their donor lists.

Now, the fear is that states like California will say, “Oh, no, no. This is private information.” And then it will get leaked, and then once you have those donor lists out there, we’ve seen this before, where those donors become targeted by people who don’t like the services or the entities to which they’re donating. And so there’s a very real fear there that the state otherwise doesn’t have a good reason for these lists to be disclosed.

So, that was argued earlier in this term. We’re still waiting for an opinion out on that, but that will have very, very big implications in the nonprofit world.

And then looking even further forward to next term, I think one of the big things on my radar as someone in the Second Amendment world, is certainly New York State Rifle and Pistol Association [versus] I think, at this point, the other party is Corlett, but it’s basically versus New York. And that is a Second Amendment case dealing with the question of, what is the extent of the right to carry a firearm outside the home?

Because New York is one of the minority of states that essentially says, “Look, you, as an ordinary law-abiding citizen, you don’t have a real right to just carry for self-defense outside the home. You need to prove to us that you have good cause, above and beyond that.”

And so, in practice, most ordinary, especially in New York City, residents cannot defend themselves with a firearm outside the home, and then on top of that, you have massive bribery scandals associated with that because it turns out when it’s up to the discretion of some random individuals, it lends itself to those briberies feelings.

Allen: Sure.

But that will have, I think, huge implications for tens of millions of Americans who want to defend themselves outside the home, who are looking at the Second Amendment, going, “It says I have a right to bear arms.” And the plaintiffs in that case, they’re not saying, “Look, it needs to be permit-less carry.” They’re saying, “We’ll jump through any hoops, any training, any permitting you want us to, but you have to promise that at the end of it, you’re going to give us the permit.” That there needs to be some way for us to defend ourselves outside the home. So, that I think will have tremendous implications in the Second Amendment world. And so, that’s the big one on my radar for this coming October term.

Allen: Well, and as a Second Amendment expert yourself and a concealed carry permit holder, I know that’s very important to you.

Yes, yes. This is my opportunity. Public service announcement: The District of Columbia is a shall-issue jurisdiction. It’s not cheap or easy, but if you jump through all of the hoops, the District will give you a concealed carry permit. Too many people do not know this, because that did not used to be the case. So, this has been your public service announcement, with Second Amendment Amy.

Allen: Perfect. Thank you, Amy. No, I really am truly impressed. Sometimes I’ll brag to my friends and be like, “Yeah, I know a girl who has a concealed carry permit in D.C.” And they’re like, “Wait, what?”

Yeah. So, I’m hoping that that becomes less of their responses. People are like, “Yeah, of course you can get a concealed carry permit in D.C.” And hopefully, by the end of next year and next term, you can get a concealed carry permit anywhere. That you, as an ordinary law-abiding citizen, hopefully taking on training yourself, knowing what you’re doing, being responsible with that gun, but that you can defend yourselves and others in public.

Allen: Absolutely. All right, Amy, before I let you go, I do have to ask you about Justice Stephen Breyer. He’s 82. There’s a lot of rumors about him potentially retiring. Any hot takes on this?

Your guess is as good as mine. It’s certainly, we live in a world where there are political considerations for things like that, but also he has life tenure. No one can force him to step down, that’s a decision he has to make.

As far as I know, he still enjoys what he does. He seems to be very much with it, just as Ruth Bader Ginsburg was up until the very end, writing opinions from her hospital bed. Should he retire, that would have dramatic implications, I think. We’ll see the circus from the other side, which will be a bit of a change. But yeah, I’m not going to try to read the tea leaves there, but it is something to keep [an eye] on.

Allen: For sure. Amy, thank you. Always a pleasure having you on.

Thank you for having me.