Certiorari To The United States Court Of Appeals For The Third Circuit

No. 19–123. Argued November 4, 2020—Decided June 17, 2021

Philadelphia’s foster care system relies on cooperation between the City and private foster care agencies. The City enters standard annual contracts with the agencies to place children with foster families. One of the responsibilities of the agencies is certifying prospective foster families under state statutory criteria. Petitioner Catholic Social Services has contracted with the City to provide foster care services for over 50 years, continuing the centuries-old mission of the Catholic Church to serve Philadelphia’s needy children. CSS holds the religious belief that marriage is a sacred bond between a man and a woman. Because CSS believes that certification of prospective foster families is an endorsement of their relationships, it will not certify unmarried couples—regardless of their sexual orientation—or same-sex married couples. But other private foster agencies in Philadelphia will certify same-sex couples, and no same-sex couple has sought certification from CSS. Against this backdrop, a 2018 newspaper story recounted the Archdiocese of Philadelphia’s position that CSS could not consider prospective foster parents in same-sex marriages. Calls for investigation followed, and the City ultimately informed CSS that unless it agreed to certify same-sex couples the City would no longer refer children to the agency or enter a full foster care contract with it in the future. The City explained that the refusal of CSS to certify same-sex married couples violated both a non-discrimination provision in the agency’s contract with the City as well as the non-discrimination requirements of the citywide Fair Practices Ordinance.

  CSS and three affiliated foster parents filed suit seeking to enjoin the City’s referral freeze on the grounds that the City’s actions violated the Free Exercise and Free Speech Clauses of the First Amendment. The District Court denied preliminary relief. It reasoned that the contractual non-discrimination requirement and the Fair Practices Ordinance were both neutral and generally applicable under Employment Div., Dept. of Human Resources of Ore. v. Smith, 494 U. S. 872, and that CSS’s free exercise claim was therefore unlikely to succeed. The Court of Appeals for the Third Circuit affirmed. Given the expiration of the parties’ contract, the Third Circuit examined whether the City could condition contract renewal on the inclusion of new language forbidding discrimination on the basis of sexual orientation. The court concluded that the City’s proposed contractual terms stated a neutral and generally applicable policy under Smith. CSS and the foster parents challenge the Third Circuit’s determination that the City’s actions were permissible under Smith and also ask the Court to reconsider that decision.

Held: The refusal of Philadelphia to contract with CSS for the provision of foster care services unless CSS agrees to certify same-sex couples as foster parents violates the Free Exercise Clause of the First Amendment. Pp. 4–15.

  (a) The City’s actions burdened CSS’s religious exercise by forcing it either to curtail its mission or to certify same-sex couples as foster parents in violation of its religious beliefs. Smith held that laws incidentally burdening religion are ordinarily not subject to strict scrutiny under the Free Exercise Clause so long as they are both neutral and generally applicable. 494 U. S., at 878–882. This case falls outside Smith because the City has burdened CSS’s religious exercise through policies that do not satisfy the threshold requirement of being neutral and generally applicable. Church of Lukumi Babalu Aye, Inc. v. Hialeah, 508 U. S. 520, 531–532. A law is not generally applicable if it invites the government to consider the particular reasons for a person’s conduct by creating a mechanism for individualized exemptions. Smith, 494 U. S., at 884. Where such a system of individual exemptions exists, the government may not refuse to extend that system to cases of religious hardship without a compelling reason. Ibid. Pp. 4–7.

   (1) The non-discrimination requirement of the City’s standard foster care contract is not generally applicable. Section 3.21 of the contract requires an agency to provide services defined in the contract to prospective foster parents without regard to their sexual orientation. But section 3.21 also permits exceptions to this requirement at the “sole discretion” of the Commissioner. This inclusion of a mechanism for entirely discretionary exceptions renders the non-discrimination provision not generally applicable. Smith, 494 U. S., at 884. The City maintains that greater deference should apply to its treatment of private contractors, but the result here is the same under any level of deference. Similarly unavailing is the City’s recent contention that section 3.21 does not even apply to CSS’s refusal to certify same-sex couples. That contention ignores the broad sweep of section 3.21’s text, as well as the fact that the City adopted the current version of section 3.21 shortly after declaring that it would make CSS’s obligation to certify same-sex couples “explicit” in future contracts. Finally, because state law makes clear that the City’s authority to grant exceptions from section 3.21 also governs section 15.1’s general prohibition on sexual orientation discrimination, the contract as a whole contains no generally applicable non-discrimination requirement. Pp. 7–10.

   (2) Philadelphia’s Fair Practices Ordinance, which as relevant forbids interfering with the public accommodations opportunities of an individual based on sexual orientation, does not apply to CSS’s actions here. The Ordinance defines a public accommodation in relevant part to include a provider “whose goods, services, facilities, privileges, advantages or accommodations are extended, offered, sold, or otherwise made available to the public.” Phila. Code §9–1102(1)(w). Certification is not “made available to the public” in the usual sense of the words. Certification as a foster parent is not readily accessible to the public; the process involves a customized and selective assessment that bears little resemblance to staying in a hotel, eating at a restaurant, or riding a bus. The District Court’s contrary conclusion did not take into account the uniquely selective nature of foster care certification. Pp. 10–13.

  (b) The contractual non-discrimination requirement burdens CSS’s religious exercise and is not generally applicable, so it is subject to “the most rigorous of scrutiny.” Lukumi, 508 U. S., at 546. A government policy can survive strict scrutiny only if it advances compelling interests and is narrowly tailored to achieve those interests. Ibid. The question is not whether the City has a compelling interest in enforcing its non-discrimination policies generally, but whether it has such an interest in denying an exception to CSS. Under the circumstances here, the City does not have a compelling interest in refusing to contract with CSS. CSS seeks only an accommodation that will allow it to continue serving the children of Philadelphia in a manner consistent with its religious beliefs; it does not seek to impose those beliefs on anyone else. The refusal of Philadelphia to contract with CSS for the provision of foster care services unless the agency agrees to certify same-sex couples as foster parents cannot survive strict scrutiny and violates the Free Exercise Clause of the First Amendment. The Court does not consider whether the City’s actions also violate the Free Speech Clause. Pp. 13–15.

922 F. 3d. 140, reversed and remanded.

 Roberts, C. J., delivered the opinion of the Court, in which Breyer, Sotomayor, Kagan, Kavanaugh, and Barrett, JJ., joined. Barrett, J., filed a concurring opinion, in which Kavanaugh, J., joined, and in which Breyer, J., joined as to all but the first paragraph. Alito, J., filed an opinion concurring in the judgment, in which Thomas and Gorsuch, JJ., joined. Gorsuch, J., filed an opinion concurring in the judgment, in which Thomas and Alito, JJ., joined.

CALIFORNIA et al. v. TEXAS et al.

Certiorari To The United States Court Of Appeals For The Fifth Circuit

No. 19–840. Argued November 10, 2020—Decided June 17, 2021 1

The Patient Protection and Affordable Care Act as enacted in 2010 required most Americans to obtain minimum essential health insurance coverage and imposed a monetary penalty upon most individuals who failed to do so. Amendments to the Act in 2017 effectively nullified the penalty by setting its amount to $0. Subsequently, Texas (along with over a dozen States and two individuals) brought suit against federal officials, claiming that without the penalty the Act’s minimum essential coverage provision, codified at 26 U. S. C. §5000A(a), is unconstitutional. They sought a declaration that the provision is unconstitutional, a finding that the rest of the Act is not severable from §5000A(a), and an injunction against enforcement of the rest of the Act. The District Court determined that the individual plaintiffs had standing. It also found §5000A(a) both unconstitutional and not severable from the rest of the Act. The Fifth Circuit agreed as to the existence of standing and the unconstitutionality of §5000A(a), but concluded that the District Court’s severability analysis provided insufficient justification to strike down the entire Act. Petitioner California and other States intervened to defend the Act’s constitutionality and to seek further review.

Held: Plaintiffs do not have standing to challenge §5000A(a)’s minimum essential coverage provision because they have not shown a past or future injury fairly traceable to defendants’ conduct enforcing the specific statutory provision they attack as unconstitutional. Pp. 4–16.

  (a) The Constitution gives federal courts the power to adjudicate only genuine “Cases” and “Controversies.” Art. III, §2. To have standing, a plaintiff must “allege personal injury fairly traceable to the defendant’s allegedly unlawful conduct and likely to be redressed by the requested relief.” DaimlerChrysler Corp. v. Cuno, 547 U. S. 332, 342. No plaintiff has shown such an injury “fairly traceable” to the “allegedly unlawful conduct” challenged here. Pp. 4–5.

  (b) The two individual plaintiffs claim a particularized individual harm in the form of past and future payments necessary to carry the minimum essential coverage that §5000A(a) requires. Assuming this pocketbook injury satisfies the injury element of Article III standing, it is not “fairly traceable” to any “allegedly unlawful conduct” of which the plaintiffs complain, Allen v. Wright, 468 U. S. 737, 751. Without a penalty for noncompliance, §5000A(a) is unenforceable. The individuals have not shown that any kind of Government action or conduct has caused or will cause the injury they attribute to §5000A(a). The Court’s cases have consistently spoken of the need to assert an injury that is the result of a statute’s actual or threatened enforcement, whether today or in the future. See, e.g., Babbitt v. Farm Workers, 442 U. S. 289, 298. Here, there is only the statute’s textually unenforceable language.

   Unenforceable statutory language alone is not sufficient to establish standing, as the redressability requirement makes clear. Whether an injury is redressable depends on the relationship between “the judicial relief requested” and the “injury” suffered. Allen, 468 U. S. at 753, n. 19. The only relief sought regarding the minimum essential coverage provision is declaratory relief, namely, a judicial statement that the provision challenged is unconstitutional. But just like suits for every other type of remedy, declaratory-judgment actions must satisfy Article III’s case-or-controversy requirement. See MedImmune, Inc. v. Genentech, Inc., 549 U. S. 118, 126–127. Article III standing requires identification of a remedy that will redress the individual plaintiffs’ injuries. Id., at 127. No such remedy exists here. To find standing to attack an unenforceable statutory provision would allow a federal court to issue what would amount to an advisory opinion without the possibility of an Article III remedy. Article III guards against federal courts assuming this kind of jurisdiction. See Carney v. Adams, 592 U. S. ___, ___ . The Court also declines to consider Federal respondents’ novel alternative theory of standing first raised in its merits brief on behalf the individuals, as well as the dissent’s novel theory on behalf of the states, neither of which was directly argued by plaintiffs below nor presented at the certiorari stage. Pp. 5–10.

  (c) Texas and the other state plaintiffs have similarly failed to show that the pocketbook injuries they allege are traceable to the Government’s allegedly unlawful conduct. DaimlerChrysler Corp. v. Cuno, 547 U. S. 332, 342. They allege two forms of injury: one indirect, one direct.

   (1) The state plaintiffs allege indirect injury in the form of increased costs to run state-operated medical insurance programs. They say the minimum essential coverage provision has caused more state residents to enroll in the programs. The States, like the individual plaintiffs, have failed to show how that alleged harm is traceable to the Government’s actual or possible action in enforcing §5000A(a), so they lack Article III standing as a matter of law. But the States have also not shown that the challenged minimum essential coverage provision, without any prospect of penalty, will injure them by leading more individuals to enroll in these programs. Where a standing theory rests on speculation about the decision of an independent third party (here an individual’s decision to enroll in a program like Medicaid), the plaintiff must show at the least “that third parties will likely react in predictable ways.” Department of Commerce v. New York, 588 U. S. ___, ___. Neither logic nor evidence suggests that an unenforceable mandate will cause state residents to enroll in valuable benefits programs that they would otherwise forgo. It would require far stronger evidence than the States have offered here to support their counterintuitive theory of standing, which rests on a “highly attenuated chain of possibilities.” Clapper v. Amnesty Int’l USA, 568 U. S. 398, 410–411. Pp. 11–14.

   (2) The state plaintiffs also claim a direct injury resulting from a variety of increased administrative and related expenses allegedly required by §5000A(a)’s minimum essential coverage provision. But other provisions of the Act, not the minimum essential coverage provision, impose these requirements. These provisions are enforced without reference to §5000A(a). See 26 U. S. C. §§6055, 6056. A conclusion that the minimum essential coverage requirement is unconstitutional would not show that enforcement of these other provisions violates the Constitution. The other asserted pocketbook injuries related to the Act are similarly the result of enforcement of provisions of the Act that operate independently of §5000A(a). No one claims these other provisions violate the Constitution. The Government’s conduct in question is therefore not “fairly traceable” to enforcement of the “allegedly unlawful” provision of which the plaintiffs complain—§5000A(a). Allen, 468 U. S., at 751. Pp. 14–16.

945 F. 3d. 355, reversed and remanded.

 Breyer, J., delivered the opinion of the Court, in which Roberts, C. J., and Thomas, Sotomayor, Kagan, Kavanaugh, and Barrett, JJ., joined. Thomas, J., filed a concurring opinion. Alito, J., filed a dissenting opinion, in which Gorsuch, J., joined.

1 Together with No. 19–1019, Texas et al. v. California et al., also on certiorari to the same court.

NESTLE USA, INC. v. DOE et al.

Certiorari To The United States Court Of Appeals For The Ninth Circuit

No. 19–416. Argued December 1, 2020—Decided June 17, 2021 1

Respondents are six individuals from Mali who allege that they were trafficked into Ivory Coast as child slaves to produce cocoa. U. S.-based companies Nestlé USA, Inc., and Cargill, Inc., do not own or operate cocoa farms in Ivory Coast, but they do buy cocoa from farms located there and provide those farms with technical and financial resources. Respondents sued Nestlé, Cargill, and others under the Alien Tort Statute (ATS)—which provides federal courts jurisdiction to hear claims brought “by an alien for a tort only, committed in violation of the law of nations or a treaty of the United States,” 28 U. S. C. §1350—contending that this arrangement aids and abets child slavery. Because respondents’ injuries occurred overseas and the only domestic conduct alleged by respondents was general corporate activity, the District Court dismissed the suit as an impermissible extraterritorial application of the ATS under Kiobel v. Royal Dutch Petroleum Co., 569 U. S. 108. The Ninth Circuit held, as relevant, that respondents had pleaded a domestic application of the ATS, as required by Kiobel, because the corporations’ major operational decisions originated in the United States.

Held: The judgment is reversed, and the case is remanded.

929 F. 3d. 623, reversed and remanded.

 Justice Thomas delivered the opinion of the Court with respect to Parts I and II, concluding that respondents here improperly seek extraterritorial application of the ATS. The Court’s two-step framework for analyzing extraterritoriality issues first presumes that a statute applies only domestically and asks “whether the statute gives a clear, affirmative indication” that rebuts the presumption. RJR Nabisco, Inc. v. European Community, 579 U. S. 325, 337. As the Court has already held, the ATS does not rebut the presumption of domestic application. Kiobel, 569 U. S., at 124. In fact, the ATS does not expressly “regulate conduct” at all, much less “evince a ‘clear indication of extraterritoriality.’ ” Id., at 115–118. Second, where the statute, as here, does not apply extraterritorially, plaintiffs must establish that “the conduct relevant to the statute’s focus occurred in the United States . . . even if other conduct occurred abroad.” RJR Nabisco, 579 U. S., at 337.

 The parties dispute what conduct is relevant to the “focus” of the ATS, but even if this dispute were resolved in respondents’ favor, their complaint would impermissibly seek extraterritorial application of the ATS. Nearly all the conduct they allege aided and abetted forced labor—providing training, equipment, and cash to overseas farmers—occurred in Ivory Coast. Pleading general corporate activity, like “mere corporate presence,” Kiobel, 569 U. S., at 125, does not draw a sufficient connection between the cause of action respondents seek and domestic conduct. To plead facts sufficient to support a domestic application of the ATS, plaintiffs must allege more domestic conduct than general corporate activity common to most corporations. Pp. 3–5.

 Thomas, J., announced the judgment of the Court and delivered the opinion of the Court with respect to Parts I and II, in which Roberts, C. J., and Breyer, Sotomayor, Kagan, Gorsuch, Kavanaugh, and Barrett, JJ., joined, and an opinion with respect to Part III, in which Gorsuch and Kavanaugh, JJ., joined. Gorsuch, J., filed a concurring opinion, in which Alito, J., joined as to Part I, and in which Kavanaugh, J., joined as to Part II. Sotomayor, J., filed an opinion concurring in part and concurring in the judgment, in which Breyer and Kagan, JJ., joined. Alito, J., filed a dissenting opinion.

1 Together with No. 19–453, Cargill, Inc. v. Doe et al., also on certiorari to the same court.