Religion and the Law

Supreme Court Rules Philadelphia Can't Force Catholic Agency To Serve Gay Foster Parents

No justices disagreed, but Alito, Gorsuch, and Thomas object that the majority is sidestepping a debate over when laws can overrule religious beliefs.


Philadelphia officials were in the wrong when they tried to force a Catholic charity to ignore its religious convictions and place children in the foster homes of same-sex parents, the Supreme Court ruled this morning.

In a decision that saw no dissents, the Supreme Court justices determined that the First Amendment religious freedoms of Catholic Social Services were violated when the city of Philadelphia refused to renew a contract with the organization to handle the placement of foster children there because the agency would not place kids with same-sex couples. The refusal put the organization at odds with the city's anti-discrimination policies. And so, while the city still contracted with Catholic Social Services for other programs, it stopped doing so for foster child placement.

Today's majority decision in Fulton v. Philadelphia bears some resemblance to the 2018 Masterpiece Cakeshop v. Colorado Civil Rights Commission decision about gay wedding cakes. In that ruling, the majority decision didn't actually determine whether the state could mandate under its anti-discrimination law that a baker must make a cake for a same-sex wedding, despite his religious objections. Instead, the majority determined that the discrimination ordinance was not being neutrally applied. Comments from members of the commission indicated hostility toward the baker's religious beliefs.

In today's case, the majority similarly determined that Philadelphia's anti-discrimination regulations were not being neutrally applied. The city's foster care contracts grant the commissioner of the Department of Human Services "sole discretion" in allowing exceptions to the city's nondiscrimination regulations. Inherently, that means these regulations are not "generally applicable."

This flaw in how Philadelphia manages its foster care contracts puts the city at odds with the 1990 SCOTUS precedent of Employment Division v. Smith. That ruling established that people generally can't use religion to claim an exemption from following laws or regulations if the laws are being neutrally or generally applied. Because Philadelphia gives a commissioner authority to exempt people from the rules, it stops being a generally applicable law. As a result, this means the Supreme Court justices looked at the case with a higher level of scrutiny and determined that, yes, Philadelphia violated the Free Exercise Clause by refusing to keep contracting with Catholic Social Services.

The majority opinion was delivered by Chief Justice John Roberts. His opinion was joined by Justices Stephen Breyer, Sonia Sotomayor, Elena Kagan, Brett Kavanaugh, and Amy Coney Barrett. Barrett also wrote a concurring opinion joined by Kavanaugh and partly joined by Breyer.

Justices Samuel Alito, Clarence Thomas, and Neil Gorsuch did not sign onto the majority opinion, but they weren't dissenting. Alito filed a concurring decision, joined by Thomas and Gorsuch. Gorsuch filed a concurring decision, joined by Alito and Thomas.

So even though nobody on the Supreme Court supported Philadelphia over Catholic Social Services, this doesn't mean all the justices are all in agreement. In Barrett's concurrence, she discusses a religious freedom issue that has been brought up by this fight. Does the Smith precedent give the government too much authority to overrule religious liberties? In this case, the court was asked to consider overturning this decision. Barrett indicated in her concurrence that she's open to the possibility but questioned what would replace it.

Alito and Gorsuch's concurrences are much firmer in saying that the Smith precedent should be done away with, and that's why the two of them (joined by Thomas) didn't sign onto the majority opinion that punted on the matter. Alito's concurrence (which is 77 pages long on its own) notes that by sidestepping the problems with the Smith precedent, the court is consigning itself to not resolving these conflicts:

This decision might as well be written on the dissolving paper sold in magic shops. The City has been adamant about pressuring [Catholic Social Services] to give in, and if the City wants to get around today's decision, it can simply eliminate the never-used exemption power. If it does that, then, voilà, today's decision will vanish—and the parties will be back where they started.

He continues that it's wrong not to at least reconsider Smith:

We should reconsider Smith without further delay. The correct interpretation of the Free Exercise Clause is a question of great importance, and Smith's interpretation is hard to defend. It 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. It swept aside decades of established precedent, and it has not aged well.…

Contrary to what many initially expected, Smith has not provided a clear-cut rule that is easy to apply, and experience has disproved the Smith majority's fear that retention of the Court's prior free-exercise jurisprudence would lead to "anarchy."

And so, despite the ruling against Philadelphia, much as what happened with the Masterpiece Cakeshop case, the Court has declined to deal with the underlying religious liberty issues involved.

Alito is at least correct in saying that keeping the ambiguous status quo here guarantees more cases will arise. Just yesterday, a Colorado court ruled against Masterpiece Cakeshop in yet another religious freedom case, one where owner Jack Phillips refused to bake a blue and pink cake in celebration of a customer's transgender identity because he has religious objections to the concept of a person changing gender.