Fulton v. Philadelphia
593 U.S. 522 (2021)
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Rule of Law:
Government actions that burden religious exercise are subject to strict scrutiny if they are not neutral and generally applicable, such as when they provide a mechanism for individualized exceptions but refuse to extend that system to cases of religious hardship without a compelling reason.
Facts:
- For over 50 years, Catholic Social Services (CSS), a private foster care agency in Philadelphia, contracted with the City to place children with foster families.
- CSS holds the religious belief that marriage is a sacred bond between a man and a woman, and therefore will not certify unmarried couples (regardless of sexual orientation) or same-sex married couples as prospective foster parents, understanding certification as an endorsement of their relationships.
- Other private foster agencies in Philadelphia certify same-sex couples, and no same-sex couple has ever sought certification from CSS.
- In 2018, a newspaper story recounted the Archdiocese of Philadelphia’s position that CSS could not consider prospective foster parents in same-sex marriages.
- Following calls for investigation, the City of Philadelphia (City) informed CSS that it would no longer refer children to the agency and would not renew its foster care contract unless CSS agreed to certify same-sex couples.
- The City explained that CSS’s refusal to certify same-sex couples violated both a non-discrimination provision in its contract with the City and the citywide Fair Practices Ordinance.
Procedural Posture:
- Catholic Social Services (CSS) and three affiliated foster parents filed suit against the City of Philadelphia (City), its Department of Human Services, and the Commission in the U.S. District Court for the Eastern District of Pennsylvania.
- CSS sought a temporary restraining order and preliminary injunction, alleging the referral freeze violated the Free Exercise and Free Speech Clauses of the First Amendment.
- The District Court denied preliminary relief, concluding that the contractual non-discrimination requirement and the Fair Practices Ordinance were neutral and generally applicable under Employment Div., Dept. of Human Resources of Ore. v. Smith, making CSS’s free exercise claim unlikely to succeed.
- CSS and the foster parents appealed to the U.S. Court of Appeals for the Third Circuit, which affirmed the District Court's decision.
- The Third Circuit concluded that the City’s proposed contractual terms, requiring non-discrimination on the basis of sexual orientation, stated a neutral and generally applicable policy under Smith.
- CSS and the foster parents (petitioners) sought review from the Supreme Court of the United States.
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Issue:
Does the City of Philadelphia's refusal to contract with Catholic Social Services for foster care services unless CSS agrees to certify same-sex couples as foster parents violate the Free Exercise Clause of the First Amendment?
Opinions:
Majority - Chief Justice Roberts
Yes, the City of Philadelphia's refusal to contract with CSS for the provision of foster care services unless CSS agrees to certify same-sex couples as foster parents violates the Free Exercise Clause of the First Amendment because its non-discrimination policy is not generally applicable, and thus cannot survive strict scrutiny. The City's actions burdened CSS's religious exercise by forcing it to choose between its mission and its religious beliefs. The Court found it unnecessary to revisit Employment Division v. Smith because the City's policies failed the threshold requirement of general applicability, which mandates that a law must be neutral and generally applicable to avoid strict scrutiny. A law is not generally applicable if it creates a mechanism for individualized exemptions, as established in Smith (citing Bowen v. Roy and Sherbert v. Verner). Where such a system exists, the government cannot refuse to extend it for religious hardship without a compelling reason. Section 3.21 of the City's standard foster care contract explicitly permits exceptions to its non-discrimination requirement at the 'sole discretion' of the Commissioner. This inclusion of a mechanism for entirely discretionary exceptions renders the provision not generally applicable, regardless of whether any exceptions have been granted. The Court rejected the City's argument for greater deference towards contractors and clarified that Section 3.21 broadly applies to the rejection of prospective foster parents for services like certification, and that the exception authority extends to Section 15.1's general non-discrimination prohibition. Regarding the Fair Practices Ordinance, the Court concluded that it does not apply to CSS's certification services because certification as a foster parent involves a uniquely customized and selective assessment process, bearing little resemblance to services 'made available to the public' by typical public accommodations. Since the contractual requirement burdened religious exercise and was not generally applicable, it was subject to strict scrutiny. The City failed to demonstrate a compelling interest in denying an exception to CSS. While maximizing foster parents and ensuring equal treatment are weighty interests, the City did not show that granting an exception to CSS would risk these goals; in fact, including CSS would likely increase available foster parents. The very existence of a discretionary exception system undermined the City's contention that its non-discrimination policies could brook no departures, and it offered no compelling reason to deny an exception to CSS while making them available to others.
Concurring - Justice Barrett
Justice Barrett concurred, agreeing that the City cannot satisfy strict scrutiny because its contract contains a discretionary exemption mechanism, which means the policy is not generally applicable under pre-Smith free exercise jurisprudence. She acknowledged that serious arguments for overruling Employment Division v. Smith have been made, finding the textual and structural arguments against Smith compelling. However, she expressed skepticism about automatically replacing Smith's categorical anti-discrimination approach with an equally categorical strict scrutiny regime, noting that overturning Smith would require working through several complex issues regarding the treatment of entities versus individuals, direct versus indirect burdens, and the specific forms of scrutiny. Since the outcome of this case—applying strict scrutiny and finding a Free Exercise Clause violation—is the same regardless of whether Smith is overruled, she saw no reason to decide that question here. Her concurrence highlighted that a longstanding tenet of free exercise jurisprudence, predating and surviving Smith, dictates that a law burdening religious exercise must satisfy strict scrutiny if it gives government officials discretion to grant individualized exemptions.
Concurring_in_judgment - Justice Alito
Justice Alito concurred in the judgment, but argued strongly that the Court should have confronted and overruled Employment Division v. Smith. He contended that Smith was fundamentally wrong, failing to align with the ordinary meaning of the Free Exercise Clause, the prevalent understanding of the right at the First Amendment's adoption, or decades of established precedent (Sherbert v. Verner). He detailed historical examples of religious exemptions (oaths, military service, taxes) that predate Smith's restrictive interpretation, demonstrating that the Free Exercise Clause was understood to protect religious conduct even when it conflicted with generally applicable laws, unless it threatened public peace or safety. He criticized Smith's interpretation as essentially an anti-discrimination provision that produces 'startling consequences,' allowing categorical bans that could outlaw core religious practices like sacramental wine, kosher/halal slaughter, or infant circumcision. He called the majority's decision a 'wisp of a decision' that 'might as well be written on the dissolving paper sold in magic shops,' because it rests on a 'superfluous (and likely to be short-lived) feature' of the City's contract (the discretionary exemption). This approach, he argued, allows the City to simply remove the exemption, reignite the litigation, and offers no guidance for similar conflicts in other jurisdictions or for other religious liberty cases. He asserted that Smith's reasoning was flawed, inconsistent with other modern decisions like Hosanna-Tabor, Our Lady of Guadalupe School, and Masterpiece Cakeshop, and has proven unworkable, causing persistent confusion in lower courts regarding 'hybrid rights,' identifying laws that 'target' religion, and the scope of exemptions. He found no strong reliance interests weighing in Smith's favor, noting that RFRA and RLUIPA (which restored the compelling interest test) have shown that applying a compelling interest test is workable. He concluded that Smith was wrongly decided, threatens a fundamental freedom, and should have been corrected without further delay, as it places religious liberty at the mercy of the political process rather than judicial protection.
Concurring_in_judgment - Justice Gorsuch
Justice Gorsuch concurred in the judgment, joining Justice Alito's opinion and strongly reiterating that the Court should have overruled Employment Division v. Smith. He critiqued the majority's 'long and lonely' and 'dizzying series of maneuvers' to avoid Smith, which he described as twisting Philadelphia's public accommodations law and rewriting the City's contract provisions (Sections 3.21 and 15.1) to create a 'loophole' for a discretionary exception. He noted that no party or lower court argued for these specific interpretations. He argued that the majority's studied indecision about Smith's fate leaves religious liberty in a 'confused and vulnerable state' and guarantees continued, costly litigation for CSS and others, such as Jack Phillips, the baker in Masterpiece Cakeshop. He emphasized that Smith has been widely criticized by Justices and scholars for its infidelity to the Constitution and its unworkability, as evidenced by the Court's frequent interventions in COVID-19 cases. He asserted that the Court granted certiorari to resolve Smith's fate, and with no Justice defending the decision, the Court owed it to the parties, religious believers, and lower courts to cure the problem it created by overruling Smith now, rather than waiting for a 'grand unified theory' of the Free Exercise Clause. He concluded that refusing to give CSS the benefit of the correct interpretation of the Constitution is 'picking a side' and ensures these cases will recur until the Court has the fortitude to provide a definitive answer.
Analysis:
This case narrows the application of Employment Division v. Smith by reinforcing that laws with mechanisms for individualized exemptions are not "generally applicable" and thus trigger strict scrutiny, even if no exemptions have actually been granted. It clarifies that a government cannot refuse to extend an existing discretionary exemption system to religious hardship without a compelling reason, thereby offering a pathway for religious liberty claims to avoid Smith's more restrictive framework. While the Court avoided directly overruling Smith, the decision effectively limits its reach, particularly in contexts where government discretion is built into a policy, and it signals continued judicial scrutiny of government actions that burden religious practice.
