Fulton v. Philadelphia
593 U. S. ____ (2021) (2021)
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Rule of Law:
A government policy that burdens religious exercise and contains a mechanism for individualized exemptions is not generally applicable, and thus is subject to strict scrutiny under the Free Exercise Clause, requiring the government to demonstrate a compelling interest narrowly tailored to achieve that interest.
Facts:
- The Catholic Church, through organizations like Catholic Social Services (CSS), has dedicated over two centuries to serving needy children in Philadelphia, including providing foster care services.
- Philadelphia’s foster care system relies on annual contracts with private agencies like CSS, which are responsible for certifying prospective foster families according to state criteria.
- CSS, guided by its religious belief that marriage is a sacred bond between a man and a woman, declines to certify unmarried couples (regardless of sexual orientation) or same-sex married couples as foster parents, viewing certification as an endorsement of relationships.
- No same-sex couple has ever sought certification from CSS, and over 20 other private foster agencies in Philadelphia do certify same-sex couples.
- For more than 50 years, CSS successfully contracted with the City to provide foster care services while adhering to its religious beliefs on family certification.
- In 2018, a newspaper article reported the Archdiocese of Philadelphia's position that CSS could not consider prospective foster parents in same-sex marriages, leading to public calls for an investigation.
- Following an inquiry, the City of Philadelphia informed CSS that it would no longer refer children to the agency or renew its foster care contract unless CSS agreed to certify same-sex couples.
Procedural Posture:
- Petitioner Catholic Social Services (CSS) and three affiliated foster parents filed a lawsuit in federal District Court, alleging that the City of Philadelphia's referral freeze violated the Free Exercise and Free Speech Clauses of the First Amendment and seeking a temporary restraining order and preliminary injunction.
- The District Court denied CSS's request for preliminary relief, finding that the City's contractual non-discrimination requirement and Fair Practices Ordinance were neutral and generally applicable under Employment Division, Department of Human Resources of Oregon v. Smith, making CSS's free exercise claim unlikely to succeed.
- CSS and the foster parents appealed the District Court's decision to the United States Court of Appeals for the Third Circuit.
- The Third Circuit affirmed the denial of preliminary relief, concluding that the City's proposed contractual terms for renewal, which included language forbidding discrimination on the basis of sexual orientation, constituted a neutral and generally applicable policy under Smith.
- CSS and the foster parents petitioned the Supreme Court of the United States for a writ of certiorari, challenging the Third Circuit’s Smith determination and asking the Court to reconsider Smith.
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Issue:
Does the City of Philadelphia's refusal to contract with Catholic Social Services (CSS) for foster care services, due to CSS's religious objection to certifying same-sex couples, violate the Free Exercise Clause of the First Amendment, given that the City's contractual non-discrimination policy allows for discretionary exceptions?
Opinions:
Majority - Chief Justice Roberts
Yes, the refusal of Philadelphia 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. The Court found that the City's actions burdened CSS's religious exercise by forcing it to choose between curtailing its mission or violating its religious beliefs. The City's policy did not meet the requirement of being "neutral and generally applicable" under Employment Division, Department of Human Resources of Oregon v. Smith. Specifically, Section 3.21 of the City's standard foster care contract, which contained a non-discrimination requirement, was not generally applicable because it included a mechanism for individualized exceptions at the "sole discretion" of the Commissioner. The Court held that where such a system of individual exemptions exists, the government cannot refuse to extend that system to cases of religious hardship without a compelling reason. The Court rejected the City's arguments for greater deference to its treatment of private contractors and its attempt to reinterpret the scope of Section 3.21 or Section 15.1 (another non-discrimination clause) as not containing discretionary exceptions. Furthermore, the Court concluded that Philadelphia’s citywide Fair Practices Ordinance, which prohibits discrimination in public accommodations, did not apply to CSS's foster care certification services because the process involves a customized and selective assessment, not services "made available to the public" in the usual sense. Since the policy 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. The asserted interests in maximizing foster parents and minimizing liability were not advanced by excluding CSS, and the interest in equal treatment was undermined by the City’s own system of discretionary exceptions. The Court therefore did not need to reconsider Smith or address the Free Speech Clause claim.
Concurring - Justice Barrett
Yes, the City's actions violate the Free Exercise Clause. Justice Barrett agreed with the majority's conclusion that the City's policy was not "generally applicable" under Employment Division, Department of Human Resources of Oregon v. Smith because it contained a system for granting individualized exemptions. This lack of general applicability triggered strict scrutiny, which the City could not satisfy. She noted that the principle that laws with individualized exemptions trigger heightened scrutiny for religious burdens is a longstanding tenet of Free Exercise jurisprudence that predates and survives Smith. While acknowledging the serious arguments for overruling Smith, she found the historical record on religious exemptions from generally applicable laws to be more silent than supportive, though the textual and structural arguments against Smith were more compelling. She expressed skepticism about replacing Smith with a categorical strict scrutiny regime without first resolving several complex questions regarding the scope and application of such a test, and concluded that it was unnecessary to decide whether to overrule Smith in this particular case, as the outcome was dictated by existing precedent regarding individualized exemptions.
Concurring in judgment - Justice Alito
Yes, the refusal of Philadelphia to contract with CSS for the provision of foster care services violates the Free Exercise Clause, and Employment Division, Department of Human Resources of Oregon v. Smith should be overruled. Justice Alito agreed that the City’s actions violated the Free Exercise Clause but strongly argued that the Court should have confronted and overruled Employment Division, Department of Human Resources of Oregon v. Smith. He asserted that Smith's interpretation, which subjects neutral and generally applicable laws to rational basis review even if they incidentally burden religious exercise, is fundamentally flawed. He contended that Smith ignores the ordinary meaning of the Free Exercise Clause's text, which protects the "free exercise of religion" from being "prohibiting" (forbidding or hindering), not merely from being discriminated against. He outlined how Smith discarded nearly 30 years of precedent without proper justification, including cases like Sherbert v. Verner and Wisconsin v. Yoder. He cited extensive historical evidence, including numerous colonial and state-level legislative exemptions for religious objectors (e.g., from oaths, military conscription, and taxes for established churches), demonstrating that the founding generation understood the Free Exercise Clause to require such exemptions unless conduct threatened public peace or safety. He argued that Smith has proven unworkable, leading to confusion in "hybrid-rights" cases, "targeting" inquiries, and identifying appropriate comparators, especially highlighted by recent COVID-19 cases. He concluded that no reliance interests justified retaining Smith, and its continued presence threatens a fundamental freedom. He stated that Philadelphia's actions could not survive strict scrutiny, as the City's asserted interests (maximizing foster families, minimizing liability, ensuring equal treatment) were insufficient to justify denying an exception to CSS, particularly since CSS's policy did not hinder any same-sex couples from fostering and other agencies were available. Protecting against ideas deemed offensive is not a compelling interest justifying abridgment of First Amendment rights.
Concurring in judgment - Justice Gorsuch
Yes, the refusal of Philadelphia to contract with CSS violates the Free Exercise Clause, and Employment Division, Department of Human Resources of Oregon v. Smith should be overruled. Justice Gorsuch joined Justice Alito's opinion concurring in the judgment, emphasizing that the Court granted certiorari to decide whether to overrule Smith, and it should have done so. He criticized the majority for sidestepping this critical question by employing a "dizzying series of maneuvers" to interpret municipal and state contract law in a way that no party or amicus had advanced. He argued that this circuitous path creates new ambiguities and ensures that the litigation will continue, as the City can easily revise its policies to circumvent the narrow grounds of the majority's decision. He pointed to the ongoing confusion and costs imposed on religious believers and lower courts by Smith's unworkable framework, citing numerous recent COVID-19 cases where the Court had to repeatedly intervene to clarify Smith's application. He stressed that ten Justices have now questioned Smith's fidelity to the Constitution, and not a single Justice in this case has defended the decision. He concluded that the Court owes it to the parties, religious believers, and lower courts to correct Smith's constitutional error rather than delaying the inevitable, as "these cases will keep coming until the Court musters the fortitude to supply an answer."
Analysis:
This case avoids a direct overhaul of Employment Division v. Smith but significantly expands the 'individualized exemptions' exception, potentially making it easier for religious claimants to trigger strict scrutiny. By finding a discretionary exemption within a standard government contract, the Court creates a path for challenging ostensibly neutral laws that provide any flexibility. The decision reaffirms the high bar of strict scrutiny for religious freedom claims once the Smith general applicability hurdle is cleared, but leaves the core Smith precedent in place, ensuring continued debate over its future and application in cases without such explicit exemptions.
