Supreme Court Sides with Catholic Adoption Agency in Narrow Ruling
In Fulton v. City of Philadelphia, 593 U.S. ____ (2021), the U.S. Supreme Court issued a narrow opinion in favor Catholic Social Services (CSS), a foster care agency that refused to certify same-sex couples to be foster parents because of its religious beliefs. The Court’s decision was unanimous and largely avoided the most significant religious liberty and LGBT rights.
The Court also left intact its landmark decision in Employment Div., Dept. of Human Resources of Ore. v. Smith, 494 U.S. 872 (1990). In that case, the Court held that 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.
Facts of the Case
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, which has contracted with the City to provide foster care services for over 50 years, 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. However, other private foster agencies in Philadelphia will certify same-sex couples, and no same-sex couple has sought certification from CSS.
In 2018, a 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, holding that the contractual non-discrimination requirement and the Fair Practices Ordinance were both neutral and generally applicable under Smith, 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.
Supreme Court’s Decision
The Supreme Court unanimously reversed. “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,” Chief Justice John Roberts wrote in majority opinion joined by Justices Breyer, Sotomayor, Kagan, Kavanaugh, and Barrett.
In reaching its decision, the majority found Smith was inapplicable because Philadelphia’s contractual nondiscrimination requirement incorporated a system of discretionary exemptions that made it not generally applicable. Accordingly, the majority found it unnecessary to reconsider its holding in the landmark case.
As the Chief Justice explained, 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. He went on to highlight that while Section 3.21 of CSS’s contract requires an agency to provide services defined in the contract to prospective foster parents without regard to their sexual orientation, Section 3.21 also permits exceptions to this requirement at the “sole discretion” of the Commissioner. According to the majority, the inclusion of a mechanism for entirely discretionary exceptions renders the non-discrimination provision not generally applicable.
The majority also rejected Philadelphia’s argument that CSS’s refusal to certify same-sex couples violates its Fair Practices Ordinance prohibiting discrimination by public accommodations. “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,” Roberts wrote. “The District Court’s contrary conclusion did not take into account the uniquely selective nature of foster care certification.”
Because Smith did not apply, the ordinance was subject to strict scrutiny, which the Court found it could not survive. “As Philadelphia acknowledges, CSS has ‘long been a point of light in the City’s foster-care system,’” Chief Justice Roberts wrote. “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.”
While six of the Court’s justices did not want to revisit Smith, Justice Alito wrote a 77-page concurring opinion, joined by Justices Thomas and Gorsuch, calling for it to be overturned. Alito argued that the majority “emitted a wisp of a decision that leaves religious liberty in a confused and vulnerable state.” He further maintained that the decision “provides no
guidance regarding similar controversies in other jurisdictions” and “will be even less significant in all the other important religious liberty cases that are bubbling up.”
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Preamble to the Bill of Rights
Congress of the United States begun and held at the City of New-York, on Wednesday the fourth of March, one thousand seven hundred and eighty nine.
THE Conventions of a number of the States, having at the time of their adopting the Constitution, expressed a desire, in order to prevent misconstruction or abuse of its powers, that further declaratory and restrictive clauses should be added: And as extending the ground of public confidence in the Government, will best ensure the beneficent ends of its institution.