LEGAL
Supreme Court Sides with Catholic Foster Agency
Justices issue unanimous ruling in Fulton v. City of Philadelphia
BY ARTHUR S. LEONARD
The US Supreme Court
unanimously ruled on
June 17 that the City of
Philadelphia violated the
constitutional right to free exercise
of religion of Catholic Social Services
(CSS) when the city refused
to renew the agency’s contract to
evaluate and certify prospective
foster parents because the agency
categorically would not provide
this service for married same-sex
couples. But the court declined the
invitation by CSS and numerous
religious freedom groups to create
a general religious exemption from
complying with neutral state laws
of general application, emphasizing
the narrowness of this decision,
which turned on specifi c language
in the contract between the
city and CSS.
Chief Justice John R. Roberts,
Jr., wrote the opinion for the court,
joined by Justices Stephen Breyer,
Sonia Sotomayor, Elena Kagan,
Brett Kavanaugh, and Amy Coney
Barrett. Justice Barrett also wrote
a concurring opinion, joined by
Justice Kavanaugh and, in part,
by Justice Breyer. Justice Samuel
Alito wrote a concurring opinion,
joined by Justices Clarence Thomas
and Neil Gorsuch, and Justice
Gorsuch wrote a concurring opinion,
joined by Justices Thomas
and Alito.
A battle within the court over
whether to overrule its 1990 decision
in Employment Division v.
Smith probably explains why a
case argued so early in the term
(November 4, 2020) was not decided
until June 17, even though the
bottom line result was unanimous.
Chief Justice Roberts fi gured out
how to rule for CSS without overruling
that Employment Division,
while at least three members of the
court were so eager to overrule it
that they produced two concurring
opinions totaling almost 90 pages
arguing that the court should have
taken that step. By contrast, Roberts’
opinion for the court was only
15 pages.
The court avoided deciding some
The Supreme Court ruled 9-0 in the case of Fulton v. City of Philadelphia.
of the most hotly contested issues
in the case. It found that Philadelphia’s
Fair Practices Ordinance,
which forbids sexual orientation
discrimination by public accommodations,
was irrelevant to this
case, because — disagreeing with
the federal district court and the
court of appeals on this point —
the Supreme Court agreed with
CSS that it is not a public accommodation,
based on a close reading
of the statutory language. The
court also discussed Pennsylvania’s
anti-discrimination statute,
which it found similarly would not
apply to CSS, but this discussion
was not strictly necessary, since
the state law does not list sexual
orientation as a prohibited ground
of discrimination.
The court concluded, based on
its reading of the anti-discrimination
provisions in the city’s contract
with CSS, that the contractual
requirement not to discriminate
based on sexual orientation was
not a rule of “general application”
because one of the provisions reserves
to the commissioner of the
Department of Human Services
the “sole discretion” to grant exceptions
to its anti-discrimination
requirement, thus rendering the
precedent of Employment Division
irrelevant to this case as well.
Under Employment Division, a
law that does not directly target religious
practices or beliefs (that are
“neutral” with respect to religion)
and that applies across the board
— (is of “general application”) —
must be complied with even if it incidentally
burdens some religious
practices. However, a law that was
specifi cally passed to prevent a
particular religious practice, or
that is applied only selectively at
the discretion of government offi
cials, would not come within the
Employment Division precedent. In
the famous Masterpiece Cakeshop
case, for example, involving the
baker who refused to make a wedding
cake for a gay couple, although
the court reiterated the general
rule from Employment Division, it
found that the proceedings before
the Colorado Civil Rights Commission
were tainted by overt anti-religious
bias expressed by some of
the commissioners who were ruling
on the complaint against the
baker, and thus the “neutrality”
requirement of Employment Division
was not met.
REUTERS/JONATHAN ERNST
In this case, under the terms of
the city contract, the commissioner
retained discretion to grant exceptions
to the anti-discrimination
requirement. Because the provision
“incorporates a system of individual
exemptions,” wrote Roberts,
“made available in this case at the
‘sole discretion’ of the Commissioner,”
the city “may not refuse to
extend that exemption system to
cases of ‘religious hardship’ without
compelling reason,” quoting
language directly from Employment
Division, in which Justice
Antonin Scalia had described the
limit of the court’s holding in that
case.
The bottom line for Chief Justice
Roberts was that this case fell
cleanly within other recent free exercise
decisions by the court, calling
for “strictest scrutiny” of the
city’s argument as to why it had
a “compelling interest” to refuse
to make an exception for CSS so
that it could continue to carry on
the mission of caring for orphans
dating back to the yellow fever epidemic
of 1798. Finding the city’s
articulated interests to be “insuf-
➤ FULTON, continued on p.44
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