Law and Religion

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.

NEXT: For the Third Time, the Roberts Court Rescues Obamacare

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49 responses to “Supreme Court Rules Philadelphia Can't Force Catholic Agency To Serve Gay Foster Parents

  1. Well by not addressing the underlying issue it keeps the court busy for a long time. And unfortunately innocent people will keep getting punished by the process because the far left doesn’t quit unless you destroy them.

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  2. The underlying issue should have been addressed. And it should have been addressed as follows:

    If you’re administering a government program, you don’t get to use “religious freedom” as an excuse to apply additional restrictions or exclusions on how you administer it. Either administer it as written, or don’t participate in it.

    1. So you are arguing that the government can establish an enforceable religious dogma?

      1. How is that establishing a religious dogma? Just have a contract that lays out what you need to do if you want to administer this program. Either you agree and do it, or you don’t and don’t.
        Of course, the contract that exists may well have nothing to say about this question one way or another, in which case I would say that the religious freedom argument probably is valid here.

        1. The local government are excluding a religious organization from participating in this charitable program based on the fact that it will not conform to a mandated belief while allowing others that will conform to it. That is dictating dogma to that church. It is certainly not being religiously neutral.

          1. But the government is not mandating that the organization participate in the program. It is allowed to follow the dictates of a religious doctrine and decline. Hence their liberty is unimpaired.

            By the Supreme Court ruling, taxpayers are required, if they provide any support for foster care at all, to provide support to an agency that discriminates against some taxpayers but not others.

            1. When a new law has passed that targets to those who previously were allowed under a previous policy, that is dictating dogma. Hence their liberty is impaired.

              The Supreme Court got it right.

  3. the majority is sidestepping a debate over when laws can overrule religious beliefs.

    Lots of sidestepping. What is a “legal” “religion”? Does a “philosophical principle” count as a “religious belief”? Oh, well — in God we trust.

  4. If RBG was still alive, it would have been different! It would have been…well, it still would have been a 9-0 decision, but the usual suspects would be calling her a homophobe and deleting all the RBG pics from their pictures folder..

    1. I bet Jim Kenney is distantly related to Phailing Phil Murphy. They are peas in a progressive uber-lib pod.

      1. At least Kenney is in his 2nd term and can’t be re-elected. No such guarantee with Phil.

        1. Phuck Phil Murphy!

  5. Ugh. I cannot believe such anti-LGBTQIA+ bigotry still exists. It’s 2021!

    You know what this means? Biden needs to expand the Court by at least 10 RBG-style justices to rule against these 9 far-right extremists.


    1. 1. The majority opinion expressly stated that Catholic Services would NOT preclude LGBTQ individuals. The issue was marriage and unmarried couples.

      2. This was a unanimous judgment of the Court that struck down the actions of the City of Philadelphia.

      3. The judgment was reached that the City didn’t act neutrality and with the proper level of tailored means regardless of their purported government interest.

      4. As has been true in many cases, there are on the record hostile statements by government officials specifically directed at religious beliefs.

      5. The concurenses are correct that the majority reached a judgment that was unanimous but did not resolve much more than the current case in controversy. It is highly likely that the parties will be back in litigation within a few months. This has played out similarly with Masterpiece Cake and Little Sisters of the Poor litigation.

      6. The concurenses have good legal reasoning and analysis to overrule Smith and have the legal jurisprudence of Sherbert to be restored.

      7. Congress by near unanimous vote passed TWO statutes granting the religious liberty that would be confirmed by overrule of Smith.

      8. Bad facts by the City and LGBTQ activist. Nobody could find a single instance ( real or pretext) of a LGBTQ person or couple who was unable to foster a child by any action or inaction by Catholic Services.

      SCOTUS found a way to get to a unanimous judgment even if thete were issues left unresolved. The justices were able to put their self interest aside for the benefit of speaking with uniformity.

  6. Smith is now on life support. It is only a matter of time before it is overturned. Will strict scrutiny replace it? It should.

    Readership should take the time to read the background to this case. The drunken mayor of Philly is a loudmouth, progressive uber-lib. His hostility to religion was the driving force behind this case. His actions were completely bereft of logic or morality. What kind of leader victimizes orphans to make his policy point? Jim Kenney is that guy.

    1. Pretty sure the only victims here would be the children who have to stay in foster care instead of going to a loving family, same sex or not.

      But way to rewrite it to fit your twisted narrative that somehow the agency is completely not at fault.

      1. Quite the opposite. Since the Catholic Church may now participate again, there will be fewer children in foster care going forward because the Church will add more placements of children into homes.

        Logic isn’t your strong suit, is it?

      2. The record of this opinion found ZERO instances or examples of a LGBTQ couple or LGBTQ individual who was not able to foster a child. The majority opinion expressly stated that Catholic Services would NOT preclude LGBTQ individuals who are looking to foster. Their objection was related to ” marriage ” . They objected to any unmarried couples. They didn’t preclude any individuals.

  7. Finding parents for children has nothing to do with religion. This church is acting outside of it’s religion when it operates as a foster care facility in my opinion.

    1. OK, so all religious or ethnic charities (UNCF) should dissolve and be replaced by mandated government programs, as the true and only path to freedom.

      1. No but if the entity is operating as something other than a church then it shouldn’t be able to claim it’s a church.

        1. foster care isn’t charity work in your town?

          1. It’s not practicing religion. It’s a charity but not a church.

            1. Religious freedom is only for what you do in the sanctuary behind the church, synagogue, mosque or temple doors, apparently.

            2. far be it from me to know for certain but I’m pretty sure charity is straight out of the new testament or something

              1. Charity is a stripper

                1. You should give her money.

    2. This church is acting outside of it’s religion when it operates as a foster care facility in my opinion.

      There is dumb, and then there is a special level of willful stupidity that simply must be called out. This LoS/Pod/Jacob(?) comment is it. The Church is the Catholic Church. And the Catholic Church has been running orphanages for over 1,000 years. To care for the needy, the widow and the orphan has been a part of their ‘religion’ since their start, some 2,000 years ago.


      1. Yeah, we know all about how the Catholic Church treats children.

    3. They aren’t acting outside of their religion though.

      Religion that God our Father accepts as pure and faultless is this: to look after orphans and widows in their distress and to keep oneself from being polluted by the world. — James 1:27

  8. Why not discover some “penumbras and emanations” in the constitution and proclaim that orphaned and abandoned children have the right to be raised by a mother and father who are married to each other, except when no qualified persons are seeking the role of adoptive parents?

  9. “In today’s case, the majority similarly determined that Philadelphia’s anti-discrimination regulations were not being neutrally applied.”

    So basically Philly is going to rewrite it and apply it evenly then cut them off. Sound decision and it should be applied evenly as specified.

    They can do whatever their religious dogma tells them to and the city can write a better law that excludes any organization that doesn’t abide by city law to allow children to go to same sex couples.

    1. Not when that refusal is protected by the 1st Amendment, shitlunches.

  10. >>The refusal put the organization at odds with the city’s anti-discrimination policies.

    policy enacted for this purpose.

    >>Philadelphia officials were in the wrong


    1. >>Philadelphia officials were in the wrong

      When are they not?

  11. So govt is forced to hand children over to these groups? The fuck is up with that? And the Catholic church doesnt exactly have a good track record with children. It’d be ironic if the other quasi church foster care facilities refused to let Catholics adopt children.

    1. That is bigoted.

      For that matter the public school system does not have a better track record in dealing with its agents taking sexual advantage of minors than the Catholic Church has gotten a reputation about.

      1. Or the Scouts, or every single little league sport.
        The Catholic church looks squeaky clean when you compare the numbers of its kiddie-diddlers, to the public schools. But then that doesn’t further the narrative of Religion bad, Public Schools good; so naturally Stroozle and the media don’t mention that.

        1. You are kidding yourself.

          If kids got raped at Denny’s as often as they get raped at church, every Denny’s in the country would be burned to the ground.

  12. Is this Supreme Court decision banned on Facebook for being hate speech?

    1. Not yet, but they’re on their way…

  13. I may be incorrect, but my understanding of the facts of the case was that the Catholic agency wasn’t actually placing kids with foster parents, they were certifying the couples as good candidates…which is a bit different than what’s stated in the opening paragraphs

    It’s also notable that no gay couples had actually asked to be certified by the Catholics, and that if they had, they would have simply referred them to another available certificating body (at least that was was stated to the court). As such, it appears there was no actual barrier to gay couples being able to adopt as a result of the issue.

    I think that good libertarians should generally support the rights of people to engage in society without regard to their sexual preferences. I also think that good libertarians should acknowledge religious convictions and not force others to engage in activities that violate those convictions to the extent that it is reasonable. From that perspective, I think the court got this one right.

  14. While I disagree with the Catholic position (I left the church years ago) but they’re contract should never have been canceled; that serves to harm more children not less. If anyone has a problem with the Catholic adoption agency, they are free to start their own which would be for the betterment of the children all things being equal. The world is a better place because of Catholic charities and shame on anyone who seeks to undue that good work.

    Good for SCOTUS even if its a limited decision.

    1. Their not they’re

  15. The constitution is unambiguous on this issue but 2 thirds of SCOTUS struggle with ambiguous precedent.

  16. Are gay cakes the only inalienable gay right?

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