The Supreme Court's Narrow Ruling in Fulton v. City of Philadelphia

Reading much of the initial reporting yesterday, you might have gotten the impression that the Supreme Court delivered a huge victory for religious exercise and a defeat for LGBTQ rights. If you read the actual decision in Fulton v. City of Philadelphia, No. 19-123 (June 17, 2021), or more considered analysis such as Amy Howe’s analysis on SCOTUSblog, see Amy Howe, In foster-care case, court declines to alter precedent but hands win to religious group, Scotusblog, June 17, 2021, or GLAD’s reporting, see Narrow Supreme Court Ruling for Catholic Social Services in Philadelphia Leaves Fundamental Principles of Fairness and Nondiscrimination Intact, June 17, 2021,, you would find that the headlines and hype were significantly overstated.

Fulton concerned Philadelphia’s contract with Catholic Social Services to certify foster families. Its contract required agencies to comply with anti-discrimination laws, which includes prohibition on discrimination on the basis of sexual orientation. While CSS would certify individual gay people as foster parents, it would not certify same-sex couples or unmarried different-sex couples. Based on the refusal to comply with the nondiscrimination law, Philadelphia ceased contracting with CSS for foster-care certification services. CSS and foster parents served by it sued, losing both in the district court and the Third Circuit.

The petitioners sought certiorari arguing, among other things, that Employment Division v. Smith, 494 U.S. 872 (1990), should be overruled. Smith holds that a neutrally applicable law does not violate the Free Exercise clause of the First Amendment, even if the law incidentally affects religious practice. Overruling Smith has been the project of religious conservatives who want greater exemptions from secular laws with which they disagree. The issue has arisen most visibly in the wake of Obergefell v. Hodges, 576 U.S. 644 (2015), which held that same-sex couples had a fundamental right to marry, a view not shared by some religious communities. Consequently, Fulton had the potential to set back progress on LGBTQ rights if the Court overruled Smith and did not view anti-discrimination laws as compelling.

Fortunately, while the Court did rule in favor of CSS, it did so on narrow grounds specific to the facts of the case in an opinion written by Chief Justice Roberts and joined by five other members of the Court. Smith governs when a law is neutrally applied. But a law is not neutrally applied if discretion exists to provide exemptions. In Fulton, the contract at issue contained a provision for discretionary exemptions. Consequently, Smith did not apply and the question became whether compliance with the non-discrimination provision was narrowly tailored to a compelling interest. The court recognized that treating prospective foster parents and child equally was a “weighty” interest, noting that “[o]ur society has come to the recognition that gay persons and gay couples cannot be treated as social outcasts or are inferior in dignity and worth.” Fulton, slip op. at 14 (quoting Masterpiece Cakeshop Ltd v. Colorado Civil Rights Comm’n, 584 U.S. ___ (2018), slip op. at 9)). But the compliance requirement was not sufficiently narrow under the circumstances where no gay couple had sought certification from CSS and numerous other agencies in the city would certify such couples. Thus, under the facts of the case, the failure to grant an exception to CSS violated the Free Exercise clause.

Justice Barrett, joined by Justice Kavanaugh and in part by Justice Breyer, agreed with the majority opinion but noted that replacing Smith’s categorial neutrality approach with a categorical strict scrutiny approach presented a complicated question given that other such conflicts were treated in a more nuanced manner.

Justice Alito, on the other hand, was not at all happy with the Court’s analysis and wrote a dissent in excess of 70 pages complaining that the Court should have overruled Smith. He was joined by Justices Thomas and Gorsuch. Justice Gorsuch also wrote a concurrence strongly criticizing the majority’s analysis. He was joined by Justices Thomas and Alito.

Several points emerge from reading the various opinions in Fulton. First, LGBTQ rights matter, but so do religious rights and where a law allows for accommodations, religious freedom should prevail absent compelling circumstances such as actual harm. Second, a majority of the Court was not about to reverse precedent when it did not need to do so. Third, there is a split among the conservative justices between those who prefer to issue limited decisions and those who are ready to seize the opportunity to overrule precedent with which they disagree. Although CSS won the day, it was not the broad victory religious conservatives wanted.

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