At the end of its 2020-2021 Term, on June 17, the Supreme Court issued a much-anticipated judgment in favor of the Archdiocese of Philadelphia’s foster care placement agency. The judgment in Fulton v. City of Philadelphia was unanimous, with the Court’s majority opinion authored by Chief Justice John Roberts. Two concurring opinions, written by Justices Samuel Alito and Amy Coney Barrett, signaled interest among a majority of the justices to revisit the Court’s precedent so far as it relates to religious objections to generally applicable laws.
The Supreme Court in Fulton v. City of Philadelphia held that Philadelphia’s refusal to contract with the Archdiocese’s foster care placement agency – Catholic Social Services (CSS) – unless CSS compromised its religious beliefs violated the Free Exercise Clause of the First Amendment.
The Court’s majority concluded that the City’s actions violated 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.
In a prior decision, Employment Division v. Smith, 494 U.S. 872 (1990), the Court 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. The Fulton majority concluded that Fulton fell outside Smith because Philadelphia’s contract with providers included a system of individualized exemptions and therefore its policy was not generally applicable.
The majority refused to consider the foster care certification process as a public accommodation and thus subject to Philadelphia’s general fair practices ordinance. Certification as a foster parent, the Court explained, is not readily accessible to the public and the process involves a customized and selective assessment that bears little resemblance to, for example, staying at a hotel, eating at a restaurant, or riding a bus.
Because Philadelphia’s contractual nondiscrimination requirement burdens CSS’s religious exercise and is not generally applicable, the Court would subject it to “the most rigorous of scrutiny.” To survive such judicial review, known as strict scrutiny, the government’s action or policy must advance compelling state interests in a manner narrowly tailored to achieve those interests. “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,” the majority explained. The Court unanimously concluded that it did not.
While the Court’s majority based its decision on unique provisions in the contract used in Philadelphia which rendered it not “generally applicable,” at least five of the justices on the Court showed their willingness in concurring opinions to revisit Smith in a future case squarely governed by it. At least three justices – Alito, Thomas and Gorsuch – advocate applying strict scrutiny to restrictions on the free exercise of religion. Justices Amy Coney Barrett, joined by Brett Kavanaugh, also questions with Smith. They were joined by Justice Stephen Breyer in advocating for a more “nuanced” review of government action that interferes with the religious expression.
Catholic Social Services (“CSS”) has operated for decades in partnership with the city of Philadelphia to place children in loving and stable foster homes. In March 2018, a local newspaper questioned whether faith-based placement agencies were willing to work with same-sex couples. City officials reacted. They interrogated the heads of the two faith-based agencies working with the city (Bethany Christian Services and CSS). CSS explained that, consistent with Catholic teaching on marriage as being between a man and a woman, the agency was unable to do so. It came up with a solution: It would refer any same-sex couple who approached the agency to another private agency partnering with the city. (Bethany Christian Services eventually agreed to work with same-sex couples in Philadelphia and has since changed its policy at agencies across the country).
It is important to note that no same-sex couple had ever approached CSS to become foster parents. It’s also worth mentioning that CSS does not oppose certifying and working with individuals with same-sex attraction. Its refusal to certify same-sex couples does not mean that those couples, if otherwise qualified, cannot foster in Philadelphia. On the contrary, 29 of the city’s partner-agencies work with same-sex couples, and Catholic Social Services has offered to refer same-sex couples to any of these agencies. The city refused CSS’s proposal and stopped referring children to CSS. It later refused to renew its contract. CSS’s 200 years of care for disadvantaged children apparently counted for nothing.
Long-time foster mothers with CSS and the agency filed suit, citing the agency’s right to free speech and freedom of religion. A three-judge panel of the Third Circuit Court of Appeals ruled that the city was simply enforcing a neutral law prohibiting discrimination based on a person’s sexual orientation. The appellate court held further that Catholic Social Services “has failed to make a persuasive showing that the city targeted it for its religious beliefs, or is motivated by ill will against its religion, rather than a sincere opposition to discrimination on the basis of sexual orientation.”
All nine Justices agreed that the city violated the agency’s free exercise rights. Disagreement among the justices related to whether to revisit a prior decision of the Court.
The Supreme Court majority held that the city violated the free exercise clause of the First Amendment when it demanded that CSS certify same-sex couples as foster parents despite the agency’s religious objection. In this sense, Fulton v. City of Philadelphia adds to the Court’s recent pro-religious freedom track record and reinstates a successful Catholic-run foster placement program at a time of great need in Philadelphia.
The Court’s opinion, written by Chief Justice John Roberts, summarizes the historical contributions of the Catholic-run agency and explains the placement process in detail. Roberts acknowledged that the religious views of CSS – which followed the Catholic teaching that “marriage is a sacred bond between a man and a woman” – “inform its work in this system.” He also explained that CSS “understands the certification of prospective foster families to be an endorsement of their relationships.” “[I]t is plain that the City’s actions have burdened CSS’s religious exercise by putting it to the choice of curtailing its mission or approving relationships inconsistent with its beliefs,” wrote Roberts.
The Court in Employment Division v. Smith, 494 U.S. 872 (1990), explained Roberts, held that “laws incidentally burdening religion are ordinarily not subject to strict scrutiny under the Free Exercise clause so long as they are neutral and generally applicable.” But, he continued, “this case falls outside Smith because the City has burdened the religious exercise of CSS through policies that do not meet the requirement of being neutral and generally applicable.” While CSS pointed to evidence that the city had failed to act neutrally toward the church-run agency, the Court’s majority found it “more straightforward to resolve this case under the rubric of general applicability.”
A law is not “generally applicable” if the government can “consider the particular reasons for a person’s conduct by providing a mechanism for individualized exemptions.” A law is not generally applicable if it permits secular conduct but prohibits the same conduct when undertaken for religious reasons. The current version of the antidiscrimination provisions in Philadelphia’s standard foster care contract, noted the majority, “incorporates a system of individual exemptions, made available in this case at the ‘sole discretion’ of the [Department of Human Services’] Commissioner.”
Roberts rejected the City’s assertions that it should enjoy “greater leeway under the Free Exercise Clause when setting rules for contractors than when regulating the general public.” “We have never suggested,” explained the majority opinion, “that the government may discriminate against religion when acting in its managerial role.” Further, the fact that the Commissioner had never granted an exception was of no consequence: “The creation of a formal mechanism for granting exceptions renders a policy not generally applicable, regardless whether any exceptions have been given.”
In light of its conclusion that “[t]he contractual non-discrimination requirement imposes a burden on CSS’s religious exercise and does not qualify as generally applicable,” the city’s actions are therefore subject to “the most rigorous of scrutiny.” Under this standard of review, explained Roberts for the majority, “so long as the government can achieve its interests in a manner that does not burden religion, it must do so.” The majority reasoned that the proper question was “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.” And the answer to that question was a resounding “No.”
The majority held that maximizing the number of foster families was an interest not served by excluding CSS from the city’s program. Nor does the equal treatment of foster parents and children justify excluding CSS in light of the system of exceptions in the city’s contract.
Justice Amy Coney Barrett, joined by Justice Brett Kavanaugh, agreed with the majority that Smith did not control in this case because the city’s contract was not generally applicable. Barrett wrote a concurring opinion in which she acknowledged “serious arguments that Smith ought to be overruled.” “I find the historical record more silent than supportive on the question whether the founding generation understood the First Amendment to require religious exemptions from generally applicable laws in at least some circumstances,” Justice Barrett explained. By contrast, “the textual and structural arguments against Smith are more compelling.”
Justice Barrett was measured in her opinion of what “should replace Smith.” “I am skeptical about swapping Smith’s categorical antidiscrimination approach for an equally categorical strict scrutiny regime,” she wrote. Justice Stephen Breyer joined Justices Barrett and Kavanaugh in support of a more “nuanced” approach.
Justice Samuel Alito, joined by Justices Clarence Thomas and Neil Gorsuch, concurred in the Court’s judgment. A concurrence in judgment means the justice agreed with the outcome of the case (here, the result in favor of CSS) but disagreed with the reasoning (here, the conclusion that the contract was not generally applicable and that CSS was not a “public accommodation.”).
In the concurrence, Justice Alito argued that “[t]his case presents an important constitutional question that urgently calls out for review: whether this Court’s governing interpretation of a bedrock constitutional right, the right to the free exercise of religion, is fundamentally wrong and should be corrected.” Alito offered a lengthy critique of Smith, beginning with its “startling consequences” such as the case in Philadelphia. The individualized exemption system permitted under the city’s standard contact “is likely to be short-lived,” Justice Alito said. “The City has been adamant about pressuring CSS to give in, and if the City wants to get around today’s decision it can simply eliminate the never-used exemption power.” Justice Alito also asserted that the majority overreached by deciding that the certification services did not constitute “public accommodations” under the city’s Fair Practices Ordinances. “[T]his Court’s interpretation of state and local law is not binding on state courts,” he said.
Justice Alito argued that Smith “can’t be squared with the ordinary meaning of the text of the Free Exercise Clause or with the prevalent understanding of the scope of the free-exercise right at the time of the First Amendment’s adoption.” Additionally, he noted, Smith “swept aside decades of established precedent, and it has not aged well.”
Moreover, Smith paid “shockingly little attention to the text of the Free Exercise Clause ... This strange treatment of the constitutional text cannot be justified – and is especially surprising since it clashes so sharply with the way in which Smith’s author, Justice Scalia, generally treated the text of the Constitution (and, indeed, with his entire theory of legal interpretation).” Following the “normal and ordinary meaning” of the text of the clause, it is much more than a mere antidiscrimination clause. “The key point for present purposes is that the text of the Free Exercise Clause gives a specific group of people (those who wish to engage in the “exercise of religion”) the right to do so without hindrance.”
According to Justice Alito, there is a possible explanation for the errors in Smith: “When Smith was decided, scholars had not devoted much attention to the original meaning of the Free Exercise Clause, and the parties’ briefs ignored this issue, as did the opinion of the Court.” The historical record since then has been “plumbed in detail.” While the picture is “complex,” Alito believes that there is one predominant model found in State Constitutions which “extends broad protection for religious liberty but expressly provides that the right does not protect conduct that would endanger ‘the public peace’ or ‘safety.’” Justice Alito highlighted the factors favoring overruling Smith: it was a “methodological outlier”; was “discordant with other precedents”; has proven unworkable for the courts; and there have been subsequent developments such as the ease with which the Religious Freedom Restoration Act (RFRA) and the Religious Land Use and Institutionalized Persons Act (RLUIPA).
Justice Alito proposed applying a standard of strict scrutiny instead of Smith. He suggested that “[a] law that imposes a substantial burden on religious exercise can be sustained only if it is narrowly tailored to serve a compelling government interest.” Applied to the situation in Philadelphia, the “ouster of CSS from foster care work simply does not further any interest that can properly be protected in this case.” While many people would find “the idea that same-sex couples should not be foster parents because only a man and a woman should marry” to be both objectionable and hurtful, “protecting against this form of harm is not an interest that can justify the abridgment of First Amendment rights.” Justice Alito also rejected the attempt to characterize the relationship between the city and CSS as similar to the relationship with its employees or contractors.
In his opinion concurring in the judgment, Justice Gorsuch noted that if the Court had overruled Smith, as Justice Alito had suggested, “this case would end today.” Instead, “the majority’s course guarantees that this litigation is only getting started.” The city will try to resist working with CSS as long as CSS refuses to certify same-sex couples, and the decision will allow the city to try to avoid doing so – for example, by rewriting its contract. He feared the effects of the court’s decision will not be limited to CSS: “Individuals and groups across the country will pay the price — in dollars, in time, and in continuing uncertainty about their religious liberties.”
At the time of writing, reaction among religious freedom scholars is still fairly limited, but there is a growing consensus that the Court’s opinions have positive implications for future religious freedom disputes.
Law Professors Thomas Berg from the University of St. Thomas (Minnesota) and Douglas Laycock at the University of Virginia made several important observations in an article for SCOTUS blog’s symposium on the Court’s Fulton decision. “The court made clear that general applicability is a separate requirement from neutrality; both must be satisfied. It held that a rule flunks general applicability when it gives officials discretion to grant exceptions, even if the officials never grant any: The discretion enables discrimination against religion. Nor can government discriminate just because it’s setting rules for its contractors rather than regulating the general public.” Additionally, they note, “Fulton also makes clear that civil rights laws do not automatically and in every context serve a compelling government interest.”
Michael McConnell, Constitutional Law Professor at Stanford Law School and an acknowledged expert on the Free Exercise Clause, had this to say about Fulton: “The unanimity of this decision shows just how great a divergence there now is between well-established First Amendment doctrine and popular—even academic—perceptions. Religious liberty, including the right to deviate from politically powerful norms, is an important part of our civil libertarian heritage, shared by Supreme Court justices on the left as well as the right. Conservatives should calm down; their freedom to worship in accordance with conscience is not imperiled in the America of 2021. And left-progressives also should calm down; there is nothing radical or nefarious about the application of civil liberties to protect people across the spectrum.”
Notre Dame Law Professor Richard W. Garnett, in an article for First Things entitled “After Fulton, Religious Organizations Still Vulnerable,” wrote that “the unanimity in Fulton came as a surprise to most …. It is, we should hope, a reminder that religious freedom is foundational and that it need not and should not be only a partisan concern.” Garnett emphasized several points in Roberts’ opinion. First, all nine justices agreed that Philadelphia’s refusal to contract with CSS burdened the agency’s free exercise of religion. Next, the Court rejected a deferential approach to the city’s management of its relationship with CSS. “Contemporary governments have many ways, not limited to mandates and punishments, of coercing religious persons and groups to compromise or retreat; they are often able to do so just as well through indirect “soft power” mechanisms like contract conditions, accreditation requirements, licensing schemes, and access criteria as they are through direct commands,” noted Garnett. Finally, the Court did not “embrace the claim that any such accommodation would inflict ‘dignitary harms’ or undermine the aims of civil-rights laws.”
The Cato’s Institute’s Walter Olson, in a blogpost titled “Fulton v. City of Philadelphia: Yes, It Was a Big Deal,” pointed to what he believes to be a “working majority on the Court” ready to “replace the [Smith] standard with a standard more favorable to accommodation of religious believers’ convictions.” Olson also wrote that “the tremors from the Court’s ruling on the ‘generally applicable’ standard will be felt widely.” Complainants, Olson asserted, will be helped greatly by the majority’s express rejection of Philadelphia’s argument for greater deference in contracting and other internal matters. Also, observed Olson, by “keeping the definition of public accommodation helps keep law and litigation from engulfing sectors of society needlessly in cultural conflict.”
The majority in Fulton based its conclusion on the unique individualized exemptions provided for in the City’s contract with providers. Catholic and other faith-based foster care and adoption agencies, I suggest, should carefully review their contracts and general practice. If their contract allows a level of discretion to exempt agencies from general antidiscrimination requirements as existed in Philadelphia, then accommodations should similarly be available for religious-based objections. Nonprofits should seek the advice of legal counsel to review their service agreements to determine whether it grants government officials discretion to exempt any providers.
General antidiscrimination policies may be used by government officials at the local, state and federal level to exclude Catholic and other faith-inspired social service organizations from partnering with government or even receiving necessary licensure to operate independently. Fulton confirms that if exemptions from general antidiscrimination laws are allowed for any reason, they must also be allowed for religious objections. In the absence of a system of individualized exemptions or evidence that religious organizations are being targeted, the general principle set forth in Smith applies until the Court has the chance to confront Smith head on. When it does, a majority of the justices are ready to revisit Smith.
Andrea Picciotti-Bayer is Director of the Conscience Project, a not-for-profit organization that defends the dignity and worth of every human being by advancing these rights through public education in the media and amicus support in key religious freedom cases. A Stanford-educated lawyer, Andrea has dedicated her legal career to civil rights and appellate advocacy. She got her start in the Civil Rights Division of the United States Department of Justice, specializing in institutional reform and police misconduct and also handling enforcement of constitutional and federal civil rights laws in the appellate section. Before leading the Conscience Project, Andrea served as legal advisor to the Catholic Association, filing several amicus briefs with the federal courts of appeal and the U.S. Supreme Court including briefs in support of petitioners in Fulton v. City of Philadelphia. Andrea is a legal analyst for EWTN News and frequent contributor for the National Catholic Register.
 “Strict scrutiny” refers to the most rigorous of the tests a court uses to determine whether a particular government action violates the United States Constitution.