No. 19-123

In the Supreme Court of the ______SHARONELL FULTON, ET AL., Petitioners, v.

CITY OF PHILADELPHIA, PENNSYLVANIA, ET AL., Respondents. ______On Writ of Certiorari to the United States Court of Appeals for the Third Circuit ______BRIEF AMICI CURIAE OF THE NATIONAL JEWISH COMMISSION ON LAW AND PUBLIC AFFAIRS (“COLPA”), AGUDAS HARABONIM, AGUDATH OF AMERICA, NATIONAL COUNCIL OF YOUNG ISRAEL, RABBINICAL ALLIANCE OF AMERICA, RABBINICAL COUNCIL OF AMERICA, ORTHODOX JEWISH CHAMBER OF COMMERCE, AND TORAH UMESORAH IN SUPPORT OF PETITIONERS ______Of Counsel NATHAN LEWIN Counsel of Record DENNIS RAPPS ALYZA D. LEWIN 450 Seventh Avenue LEWIN & LEWIN, LLP 44th Floor 888 17th Street NW New York, NY 10123 4th Floor (646) 598-7316 Washington, DC 20006 [email protected] (202) 828-1000 [email protected]

Attorneys for Amici Curiae June 2020 i

TABLE OF CONTENTS Page

TABLE OF AUTHORITIES ...... ii INTEREST OF THE AMICI ...... 1 INTRODUCTION AND SUMMARY OF ARGUMENT ...... 3

ARGUMENT ...... 4

I. THIS COURT’S DECISION IN EMPLOYMENT DIVISION v. SMITH WAS A DRASTIC DEPARTURE FROM “THE PRINCIPLE OF PARTY PRESENTATION” ...... 4

II. ADHERENCE TO JEWISH RELIGIOUS OBSERVANCE MAY JUSTIFY A REFUSAL TO PLACE A JEWISH FOSTER CHILD WITH A SAME-GENDER COUPLE ...... 9

CONCLUSION ...... 11 ii

TABLE OF AUTHORITIES Page Cases Church of the Lukumi Babalu Aye, Inc. v. Hialeah, 508 U.S. 520 (1993) ...... 10

City of Boerne v. Flores, 521 U.S. 507 (1997) ...... 8

Employment Division v. Smith 485 U.S. 660 (1988) ...... passim

Masterpiece Cakeshop, Ltd. v. Colorado Civil Rights Comm’n, 138 S. Ct. 1719 (2018) ...... 10

Other Authorities 2 Elon, Jewish Law: History, Sources, Principles (1994) ...... 9

Encyclopedia Judaica, “Adoption” Volume 1, p. 418 (2d ed. 2007) ...... 9

Rosen, Yisrael, “Converting Adopted Minors in a Secular Home,” Techumim, Vol. 20, p. 245 (2000) ...... 10

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INTEREST OF THE AMICI1

The National Jewish Commission on Law and Public Affairs (“COLPA”) has spoken on behalf of America’s Orthodox Jewish community for more than half a century. COLPA’s first amicus brief in this Court was filed in 1967 in Board of Education v. Allen, 392 U.S. 236 (1968). Since that time, COLPA has filed more than 35 amicus briefs to convey to this Court the position of leading organizations representing Orthodox in the United States. The following national Orthodox Jewish organizations join this amicus brief: ▪Agudath Israel of America, founded in 1922, is a national grassroots Orthodox Jewish organization that articulates and advances the position of the Orthodox Jewish community on a broad range of issues affecting religious rights and liberties in the United States. ▪Agudas Harabonim of the United States and Canada is the oldest Jewish Orthodox rabbinical organization in the United States. Its membership includes leading scholars and sages, and it is involved with educational, social and legal issues significant to the Jewish community. ▪National Council of Young Israel is a coordinating body for more than 300 Orthodox synagogue

1Pursuant to Supreme Court Rule 37.6, amici certify that no counsel for a party authored this brief in whole or in part. No person or party other than the amici has made a monetary contribution to this brief’s preparation or submission. Respondents have filed a blanket consent to the filing of amicus briefs. Petitioners have consented to the filing of this amicus brief.

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branches in the United States and Israel that is involved in matters of social and legal significance to the Orthodox Jewish community. ▪Orthodox Jewish Chamber of Commerce is a global umbrella of businesses of all sizes, bridging the highest echelons of the business and governmental world