A Victory for Religious Freedom?

The Supreme Court decides the Catholic adoption services case


Last week, the Supreme Court decided the Catholic adoption services case, Fulton v. City of Philadelphia. In Fulton, Catholic Social Services (CSS) argued that Philadelphia violated the agency's rights under the Free Exercise Clause by requiring it to place children with same-sex couples as a condition of participating in the city's foster care program. CSS objects to placing children with such couples as a matter of religious conviction.

Court watchers thought the Justices might use Fulton as an occasion to revisit their landmark 1990 ruling in Employment Division v. Smith, which held that a neutral and generally applicable law that incidentally burdens religion does not violate the Free Exercise Clause. The Philadelphia policy applied to religious and non-religious agencies alike, so it seemed like just the sort of generally applicable measure that would pass muster under Smith. If the Justices wished to overrule their 1990 decision, Fulton would have provided a good opportunity.

In the end, the Court decided to leave Smith on the books for now. It ruled in favor of CSS; indeed, not a single Justice dissented. But the Court concluded that Smith did not apply to these facts, because Philadelphia's non-discrimination policy was not, in fact, generally applicable. In theory, Philadelphia allowed for exceptions to that policy–though it had never granted an exception and evidently had no plans to so do.

As a consequence, an older, pre-Smith line of cases controlled, which holds that a law that burdens religion must pass "strict scrutiny": the law must serve a compelling state interest and restrict religion only as much as necessary. And, the Court said, strict scrutiny was not satisfied here. Ending discrimination against same-sex couples was a  "weighty" state interest, the Court believed. But as Philadelphia allowed for exceptions to its non-discrimination policy, it didn't have a compelling reason to deny an exception to CSS as well.

Although Fulton represents a victory for religious freedom, it's unclear how big a victory it is. The Court's highly fact-specific resolution of the case allowed it to avoid addressing bigger conflicts between LGBT rights and religious freedom. Those conflicts remain, and at some point the Court will presumably have to address them. For now, however, just as it did four years ago in Masterpiece Cakeshop, the Court has kicked the can down the road.

For some more thoughts on Fulton, please check out my essay, here.

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  1. Given the ‘unexpected’ consequences of the the SCOTUS weighing in on abortion, marriage, and so on, maybe a little humility and patience is to be commended. It’s not like the SCOTUS every really solves anything contentious.

  2. Lately it seems the supreme court will issue anything but a simple clear cut opinion.

  3. This is a victory for religious bigots, not religious liberty.

    1. If you wish for my religion of atheism to be able to stomp unimpeded on all other religions, or at least Christianity, please propose amending the First Amendment, and it The People judge it wise, they will adopt it.

    2. I think you are unclear on the concept of liberty. It means being left alone to do what you want. The bigots in this case are the ones trying to prohibit others from worshiping as they like.

  4. This case seems remarkably similar to Masterpiece Cakeshop. Like the hearing commissioners in Masterpiece Cakeshop, Philadelphia here did something stupid, a no-no that no competently advised city of Philadelphia’s policy inclinations is ever going to do again. So the plaintiffs here got an easy and essentially meaningless win, a Pyrrhic victory. All Philadelphia has to do is amend its ordinance to remove the Commissioner’s absolute discretion, and it will win any future case..

    In Masterpiece Cakeshop, Justice Sottomayor’s concurrence pretty much coached the Colorado Civil Rights Commission on how to avoid saying anything stupid that might lead to a second win for Masterpiece Cakeshop on remand.

    Here, it was the majority opinion that coached Philadelphia on what to do to avoid a repeat of the situation.

    Fulton also got a small, equally Pyrrhic win because adoption services were deemed not covered by Philadelphia’s public accommodations ordinance. But all a city like Philadelphia has to do is adopt an ordinance specifically covering adoption services, and make sure it doesn’t grant anyone unfettered discretion to make exceptions. Easy peasy.

    1. Politicians: Hey! This new invention of discretionary exemptions at our whim is wonderful! It dovetails nicely with the purpose of government: we politicians seeking to get in the way, to be corrupt and get paid to get back out of the way!

      In short, the hot air about attacking religion is for you to consume. Giving that away to maintain the discretion for exemptions is a small price to pay for the corruption industry of government.

  5. I disagree that the court didn’t address the larger issues. Both the main opinion and the Barrett concurrence made it pretty clear an ordinance like Philadelphia’s will be upheld by the current Court as long as it didn’t contain anything stupid. Alito’s assessment that the result was effectively a loss for the plaintiffs on the larger issues was, in my view, completely correct.

  6. In my view if birth parents in distress specifically want their child adopted or fostered by a good Catholic family, I don’t think the City can prevent that, or disagree with the Catholic Church’s opinion on who’s a good Catholic family, because it dislikes the Catholic Church’s religious views. But this wasn’t that case.

    1. Keep in mind religions provided these services for millenia before government insinuated itself into the process.

      Literally the first non-Biblical mentions of Christianity talked about how they cared for the sick without concern for themselves, and how admirable that was, and how it made them gain converts.

      Indeed, the fall of religion in Europe was tied to the state adopting more and more of caring for people in distress, poor, sick, elderly. And so religion as admirable kindness got shifted to the state.

      There. Now you’re wokedy woke more than you ever woked before.

  7. This is the Catholic hierarchy litigating, not the rank and file. Based on my experience with such organizations, my guess is that the social workers at that adoption agency, most of them who go to Mass every Sunday, are perfectly fine with placing children with gay couples.

  8. I think the answer here is for certain people of the LGTBQ complex and its supporters to stop being proverbial d*cks.

    Listen, you got gay marriage. I’m happy for you. Really.

    But now, you’re marching into a certain cake shop and demanding the baker bake a specific cake with a specific message that violates his beliefs. Then trying to sue him out of existence. Rather than use one of the other 99+ other cake shops in the area who would be happy to take your order.

    Or you’re specifically asking for a special order blue and red cake…fine. But then you go ahead and tell the owner, who you KNOW has religious objections to transgender transitions that it’s to symbolize your transition. So he objects to such a message. And you try to sue him out of existence. Why not…just not tell him what the cake is for?…. Well, we know why.

    Is it so hard for this certain sector of LGTBQ to respect other people’s beliefs? When there are dozens of other options? If a Christian walked into a Muslim baker and demanded a cake saying “Jesus Christ is my lord and savior” and the Muslim baker turned down the request…no one would bat an eye. If the Christian then tried to sue the Muslim baker out of existence, there would be an uproar.

    So….stop being proverbial d*cks. Respect other people’s beliefs.

    1. We’re not talking about cakes but children, most of them traumatized, and a shortage of stable couples who are willing to step forward to adopt them.

      1. And so, the city of Philadelphia decided to step in and ban an organization from helping to provide homes for them, on arbitrary and capricious grounds.

      2. CSS wasn’t blocking any adoptions and pointed gay couples towards other orgs that would help. The government blocked the adoptions.

        1. Clearly meant for captcrisis but replies are a capricious thing.

  9. CSS won this case the easy way, under the Smith precedent. When Philadelphia eliminates the discretionary exemption provision, CSS will win again, also under Smith – the law as enacted is not neutral as evidenced by the fact that the City modified it to once again exclude CSS.

    Eventually, a case will come to the Court that challenges Smith where the Chief Justice can’t cobble together a majority to reach the desired result while maintaining stare decisis, and we’ll return to strict scrutiny for laws burdening the free exercise of religion, where we would have been all along had Antonin Scalia not been willing to abandon originalism whenever his moral sensibilities were offended (particularly by controlled substances, but equally by gay sex).

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