In a brief order, the court announced it would not take the case in light of its decision earlier this year in Fulton v. Philadelphia, maintaining a Catholic social service agency should not have been eliminated from Philadelphia’s foster care program because it did not accept same-sex couples as foster parents. That case concluded the city’s unwillingness to work with the agency violated the free exercise clause of the First Amendment.
The Supreme Court justices had considered the New York case four times before issuing the order that vacated the State Court’s ruling and sent the case back to the lower court.
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Justices Clarence Thomas, Samuel Alito, and Neil Gorsuch indicated that they would examine the case on its merits, though they were one vote short of the four required to do so.
Yet sending the case back was seen as good news by Albany Bishop Edward B. Scharfenberger, who stated: “We are gratified and grateful that the Supreme Court has recognized the serious constitutional concerns over New York state’s heavy-handed abortion mandate on religious employers.”
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In a Nov. 1 statement, he announced he was confident the order for the lower court to take another look at this case would reveal that “the unconstitutional regulatory action taken by New York state will ultimately be completely overturned as incompatible with our country’s First Amendment guarantee of religious liberty.”
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The state regulation was placed on insurers in 2017 by New York state’s Department of Financial Services.
It carved out an exemption for religious employers primarily serving those of their own faith. The exemption did not extend to other religious groups in the state that have any type of outreach ministry like Catholic Charities; the Carmelite Sisters for the Aged and Infirm, who operates a nursing home in Albany; the Community of St. Mary, an Anglican order of nuns devoted to contemplative monastic life and youth outreach; and the First Bible Baptist Church of Hilton.
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Noel Francisco, the former U.S. Solicitor General, represented the Albany Diocese before a federal court where he announced the state’s regulation violated the Constitution. An intermediate state appellate court upheld the state’s demand naming it “neutral and generally applicable.”
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In a brief submitted to the Supreme Court asking the court to hear their case, they said it was unconstitutional to ask them to “participate in a practice so fundamentally in conflict with their religious beliefs.”
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