Jun 18, 2021

By Chelsea Thomeer

Sometimes, Supreme Court decisions are resets, revolutions, wholesale re-makings. We tend to think of the court this way, as the announcer of edicts – there is a right to privacy, a right to abortion, a right to marry regardless of one’s gender identity.

But much more often, the decisions of the nation’s highest court are far less sweeping. Yesterday’s Supreme Court ruling in Fulton v. City of Philadelphiaa case concerning whether a city could prohibit a taxpayer-funded, religiously affiliated foster-care agency from discriminating against LGBTQ prospective parents – is a paradigmatic example of a narrow decision. Though all nine justices voted against the city, to see this case as a unanimous victory for faith-based organizations that wish to discriminate against LGBTQ people would be a mistake. On the other hand, aspects of the decision create serious cause for concern for those who believe that religious freedom should never be misused to justify discrimination.

Fulton stemmed from a dispute between the city of Philadelphia and Catholic Social Services (CSS), one of the private agencies Philadelphia contracted with to provide foster care services. CSS would certify prospective foster parents, who could then be matched with a child in Philadelphia’s foster care system.

State and municipal governments frequently make such contracts with private organizations, including religious ones, to fulfill government obligations to provide for the general welfare. Because the private organization is carrying out a public mission, the contract is often made contingent on fulfillment of certain requirements, such as a willingness to serve all the public, or at least all the public eligible for a given service. Catholic Social Services’ contract with Philadelphia included such a provision, which prohibited “reject[ing] a child or family” on the basis of a number of characteristics, including sexual orientation, “unless an exception is granted by the Commissioner” of the Philadelphia Department of Human Services at the commissioner’s “sole discretion.”

The controversy that reached the Supreme Court began when Philadelphia learned from a local journalist that CSS was not upholding its end of this bargain because it wouldn’t certify LGBTQ couples as foster parents. To make a long lawsuit short, Philadelphia stopped working with CSS because the organization had violated its contract. CSS then sued Philadelphia, on the grounds that its policy was based on its religious beliefs. To refuse to work with a faith-based agency because of its faith-based policy, CSS said, was a violation of the Constitution’s protection of the free exercise of religion.

A federal district court and a federal appellate court both rejected CSS’s argument that its rights were violated. Philadelphia officials, the courts held, had a right to enforce its public accommodations and nondiscrimination requirements, and it was not interfering with CSS’s free exercise rights but simply declining to contract with the agency.

In the majority opinion released yesterday, the high court reversed the lower courts, holding that “the actions of the City” did indeed “violate the Free Exercise Clause.” The opinion was authored by Chief Justice John G. Roberts and joined by five other justices, including the court’s three most liberal members.

In its opinion, the court cited Employment Division v. Smith, a leading free exercise case authored by late Justice Antonin Scalia. Under Smith, only laws that are not “neutrally and generally applicable” are subjected to “strict scrutiny,” the court’s most exacting standard. Put another way, if a law applies to everyone in an equal and unbiased manner, it can stand, even if it happens to impose an extra burden on members of a particular religious group. But if a law is not neutral or generally applicable, it is subject to “strict scrutiny” and can only be upheld if it advances “interests of the highest order” and “is narrowly tailored to achieve those interests.”

In Fulton, looking at the particular provisions of the contract at issue, the court said that Philadelphia’s nondiscrimination policy wasn’t neutral and generally applicable. Why? Because the contract allowed the commissioner to make individualized exceptions from the policy. The court’s ruling can be boiled down to this: If a government allows discretionary exceptions in some cases, it generally must also grant religious exceptions to religious individuals or organizations.

So, at least for now, this specific organization receiving public funding to provide public services is being allowed to maintain a policy that excludes a portion of the public. But it’s also important to take note of what the court – or at least a majority of the court – didn’t say, if only to be aware of what the court still could say in the future.

The Fulton decision is extraordinarily narrow, based less on a reading of the Free Exercise Clause than a single clause of a single contract between a religious organization and a municipal government. If Philadelphia decides to rewrite its future contracts to remove all exceptions from its nondiscrimination policy, there is nothing in Fulton that would require religious exemptions from the policy.

Technically, Catholic Social Services won – but it won very narrowly, and perhaps only for the time being. Indeed, CSS had specifically asked the court not only to find Philadelphia’s actions unconstitutional but to overrule prevailing free exercise precedent in a manner that would make it much easier for religious claimants to ignore a wide variety of laws and impose their religious beliefs on others. That did not happen.

Justices Samuel A. Alito and Neil M. Gorsuch, joined by Justice Clarence M. Thomas, wrote concurring opinions advocating acceptance of this invitation. But Justice Amy Coney Barrett, joined by Justice Brett M. Kavanaugh, wrote a more measured concurrence. While those two justices stated that they disagree with current free exercise precedent, they were not willing to overrule it at this time because they are not sure what to replace it with.

“I am skeptical,” wrote Barrett, “about swapping Smith’s categorial antidiscrimination approach for an equally categorial strict scrutiny regime, particularly when this Court’s resolution of conflicts between generally applicable laws and other First Amendment rights – like speech and assembly – has been much more nuanced.”         

Thus, Fulton is not a unanimous, unvarnished victory for the religious extremists who wanted an expansive free pass to misuse religion to discriminate. It is not a revolution in religious freedom law. It is, rather, an expression of skepticism on the part of six justices that there exists a general right for religious entities to opt out of laws that were meant to protect all of us equally.

May those justices stay skeptical. And may the rest of us not let them forget why they ought to be.

Chelsea Thomeer is a legal intern with Americans United.