The Volokh Conspiracy

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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.