WASHINGTON — The US Supreme Court ruled Thursday that the city of Philadelphia violated the First Amendment when it refused to work with a Catholic social services agency that wouldn’t place foster kids with same-sex couples.
In a unanimous decision written by Chief Justice John Roberts Jr., the court found that Philadelphia had placed too great a burden on Catholic Social Services’ religious exercise rights by forcing the agency to choose between maintaining its contract with the city or certifying same-sex couples as foster parents against its religious beliefs.
The ruling doesn’t stop local governments like Philadelphia from having policies on the books that bar outside agencies that do business with the city from discriminating on the basis of sexual orientation. But the court held that such nondiscrimination policies have to be “generally applicable,” and Philadelphia’s were not, the justices concluded. The court rejected a request by Catholic Social Services (CSS) to adopt a more sweeping decision that would have made it harder for local governments generally to defend nondiscrimination policies against religion-based challenges, though five of the court’s conservatives wrote they were open to revisiting the broader issue in the future.
The problem with Philadelphia’s nondiscrimination policy as written in its contract with the Catholic agency was that it included a host of exemptions and that the decision of whether to grant an exemption was left to the “sole discretion” of a single city official. That meant the policy wasn’t “generally applicable,” and the city had to clear a much higher bar in order to justify placing a burden on the social services agency’s religious beliefs, Roberts wrote.
Fulton v. Philadelphia was the latest case to come before the court testing the balance between the legal protections that exist for LGBTQ people and for people of faith. When the case was argued in November, the Justice Department under then-president Donald Trump backed the Catholic agency.
The Philadelphia case carried echoes of the Masterpiece Cakeshop case that the justices decided in 2018, which also dealt with the interplay between state and local nondiscrimination laws and religious exercise rights. The court at the time ruled in favor of a baker who refused to make wedding cakes for same-sex couples on religious grounds but did so in a narrow way that avoided setting more sweeping precedent that would apply in future fights between same-sex marriage opponents and state and local governments seeking to enforce civil rights laws that protect LGBTQ individuals.
CSS, a religious nonprofit affiliated with the Archdiocese of Philadelphia, had served for decades as a private foster care contractor for the city. Potential foster parents are recruited and screened by CSS and other private agencies, and then the city refers children who come into the city’s care because of abuse or neglect to these agencies for placement in a foster home.
In 2018, Philadelphia froze new referrals to CSS after learning from a reporter that the agency had a policy on religious grounds against working with same-sex couples who wanted to be foster parents. The agency filed suit. Philadelphia said that CSS’s practice violated the city’s anti-discrimination rules. CSS argued that the city was targeting the group based on its religious beliefs in violation of the First Amendment and Pennsylvania’s Religious Freedom Protection Act.
A federal district judge denied CSS’s request for an injunction that would force the city to resume foster care referrals. In April 2019, the US Court of Appeals for the 3rd Circuit also sided with Philadelphia, finding that the city’s policy of requiring providers to not discriminate against same-sex couples was a “neutral, generally applicable law.” Catholic Social Services’ religious views didn’t entitle the agency to an exception from that policy, the appeals court held.
CSS claimed that Philadelphia had created a problem where one didn’t exist — that no same-sex couple had approached CSS and, therefore, they’d never actually turned anyone away, and that there were plenty of other foster care agencies that would work with same-sex couples. All the city was doing was cutting off access to the families that CSS did work with at a time when there was an “urgent” need for foster families, the agency argued.
Philadelphia countered that any argument that the city was punishing CSS for its religious beliefs was undermined by the fact that the city continued to contract with the group for a range of other child welfare services. As a contractor that received public funds and provided a “public function,” CSS was obligated to follow the city’s nondiscrimination policy, the city’s lawyers argued.
CSS had asked the court not only to find that the city violated the agency’s religious freedom rights in how it handled the foster care referral issue but also to go even further and revisit a 1990 decision, Employment Division v. Smith, that gave government entities more flexibility to enforce laws that placed a burden on a person’s religious exercise.
But a majority of the justices rejected CSS’s request to revisit Smith, which set the bar lower for jurisdictions with nondiscrimination policies to clear in order to defend them against religion-based challenges as long as they were “neutral” and “generally applicable.” Since the court found that Philadelphia’s contract language with CSS didn’t satisfy that second standard, the case simply didn’t present a vehicle to revisit Smith right now, Roberts wrote.
Five of the court’s conservative members (not Roberts) and one of its liberal members, Justice Stephen Breyer, indicated in separate opinions to say that they were open to revisiting Smith — and potentially strengthening legal protections for religious entities that wanted to discriminate against LBGTQ people — in the future, however.
Justices Amy Coney Barrett, joined by Justice Brett Kavanaugh, wrote that it was “difficult to see why the Free Exercise Clause — lone among the First Amendment freedoms — offers nothing more than protection from discrimination.” Breyer didn’t join in that first part of Barrett’s statement, but he signed onto the rest of Barrett’s concurring opinion, which listed the many complicated questions the court would have to grapple with if it did dive into Smith in the future.
Barrett, Breyer, and Kavanaugh joined Roberts’ opinion, along with Justices Sonia Sotomayor, and Elena Kagan. But Justices Samuel Alito Jr., Clarence Thomas, and Neil Gorsuch only joined their colleagues in ruling against Philadelphia, not Roberts’ full opinion. Alito and Gorsuch each wrote separately to say that they would have taken up the fate of Smith now and reversed it; Thomas joined both of those opinions.
Alito wrote that the question of when nondiscrimination laws and policies are shielded against religion-based challenges “urgently calls out for review” and that Smith meant that “even if a rule serves no important purpose and has a devastating effect on religious freedom, the Constitution ... provides no protection.”
“After receiving more than 2,500 pages of briefing and after more than a half-year of post-argument cogitation, the Court has emitted a wisp of a decision that leaves religious liberty in a confused and vulnerable state. Those who count on this Court to stand up for the First Amendment have every right to be disappointed—as am I,” Alito wrote.
Gorsuch wrote that the court was “dodging” an issue that would “keep coming until the Court musters the fortitude to supply an answer.”
“Perhaps our colleagues believe today’s circuitous path will at least steer the Court around the controversial subject matter and avoid ‘picking a side.’ But refusing to give CSS the benefit of what we know to be the correct interpretation of the Constitution is picking a side. Smith committed a constitutional error. Only we can fix it,” Gorsuch wrote.
Because Philadelphia’s contract language wasn’t “generally applicable” and didn’t fall under Smith, it had to satisfy a rigorous set of standards known as “strict scrutiny” to survive a religion-based challenge. Roberts wrote that Philadelphia failed to show how removing CSS from the roster of foster care agencies would serve what the city had put forward as its “compelling interests” — maximizing the number of available foster families, minimizing the city’s risk of being sued, and making sure prospective parents and children were treated equally. The exemption system undermined the city’s argument that it was necessary to enforce the nondiscrimination policy in this particular case, Roberts wrote.
The justices also rejected a separate argument that Philadelphia raised that CSS had also violated a local ordinance against discrimination in “public accommodations.” Roberts wrote that foster care agencies weren’t acting as “public accommodations” open to the general public when they certified families for placement. The certification process “involves a customized and selective assessment that bears little resemblance to staying in a hotel, eating at a restaurant, or riding a bus,” he wrote.
Catholic Social Services was represented by lawyers from the Becket Fund for Religious Liberty; the conservative legal advocacy group had also brought the case on behalf of two foster parents working with CSS, Sharonell Fulton and Toni Lynn Simms-Busch.
“It’s a beautiful day when the highest court in the land protects foster moms and the 200-year-old religious ministry that supports them,” Lori Windham, a senior counsel at Becket who argued the case, said in a statement. “Taking care of children, especially children who have been neglected and abused is a universal value that spans all ideological divides. Today, I am grateful that the Supreme Court protected heroes of the foster care system like Sharonell and Toni, who give of themselves daily to care for children in need.”
Philadelphia City Solicitor Diana Cortes released a statement calling the ruling “a difficult and disappointing setback for foster care youth and the foster parents who work so hard to support them.”
“With today’s decision, the Court has usurped the City’s judgment that a non-discrimination policy is in the best interests of the children in its care, with disturbing consequences for other government programs and services. At the same time, the city is gratified that the Supreme Court did not, as the plaintiffs sought, radically change existing constitutional law to adopt a standard that would force court-ordered religious exemptions from civic obligations in every arena,” Cortes said.