In a decisive win for religious freedom, the Supreme Court unanimously ruled in Fulton v. City of Philadelphia that faith-based foster care and adoption providers, such as Catholic Social Services in Philadelphia, can continue serving children and families according to their convictions.
While all justices ruled in favor of CSS, there were multiple concurring opinions. Chief Justice John Roberts wrote the majority opinion and was joined by Justices Breyer, Sotomayor, Kagan, Kavanaugh, and Barrett. Barrett filed a concurring opinion that was joined by Justices Kavanaugh and Breyer, although Breyer did not join in the first paragraph of this opinion. Justice Alito filed another concurring opinion that was joined by Justices Thomas and Gorsuch. Lastly, Justice Gorsuch filed a concurring opinion that was joined by Justices Thomas and Alito.
Below are key quotes from both the majority opinion and concurrence, highlighting how the court reached its decision. Page numbers from the court’s decision are given for each quote, but legal citations are omitted for clarity of reading.
For more details on the religious liberty issues present in this case, see our explainer here.
Chief Justice Roberts:
“The Free Exercise Clause of the First Amendment, applicable to the States under the Fourteenth Amendment, provides that “Congress shall make no law . . . prohibiting the free exercise” of religion. As an initial matter, it is plain that the City’s actions have burdened CSS’s religious exercise by putting it to the choice of curtailing its mission or approving relationships inconsistent with its beliefs.” (4–5).
“Government fails to act neutrally when it proceeds in a manner intolerant of religious beliefs or restricts practices because of their religious nature.” (5)
“The creation of a formal mechanism for granting exceptions renders a policy not generally applicable, regardless whether any exceptions have been given, because it “invite[s]” the government to decide which reasons for not complying with the policy are worthy of solicitude, here, at the Commissioner’s “sole discretion.” (10)
“[S]o long as the government can achieve its interests in a manner that does not burden religion, it must do so.” (13)
“The question, then, is not whether the City has a compelling interest in enforcing its non-discrimination policies generally, but whether it has such an interest in denying an exception to CSS.” (14)
“Maximizing the number of foster families and minimizing liability are important goals, but the City fails to show that granting CSS an exception will put those goals at risk. If anything, including CSS in the program seems likely to increase, not reduce, the number of available foster parents.” (14)
“As Philadelphia acknowledges, CSS has ‘long been a point of light in the City’s foster-care system.’ CSS seeks only an accommodation that will allow it to continue serving the children of Philadelphia in a manner consistent with its religious beliefs; it does not seek to impose those beliefs on anyone else. The refusal of Philadelphia to contract with CSS for the provision of foster care services unless it agrees to certify same-sex couples as foster parents cannot survive strict scrutiny, and violates the First Amendment.” (15)
Justice Barrett (joined by Justice Kavanaugh and Justice Breyer):
“A longstanding tenet of our free exercise jurisprudence . . . is that a law burdening religious exercise must satisfy strict scrutiny if it gives government officials discretion to grant individualized exemptions. As the Court’s opinion today explains, the government contract at issue provides for individualized exemptions from its nondiscrimination rule, thus triggering strict scrutiny. And all nine Justices agree that the City cannot satisfy strict scrutiny.” (2–3)
Justice Alito (joined by Justice Thomas and Justice Gorsuch):
“This case presents an important constitutional question that urgently calls out for review: whether this Court’s governing interpretation of a bedrock constitutional right, the right to the free exercise of religion, is fundamentally wrong and should be corrected.” (1)
“The city of Philadelphia (City) has issued an ultimatum to an arm of the Catholic Church: Either engage in conduct that the Church views as contrary to the traditional Christian understanding of marriage or abandon a mission that dates back to the earliest days of the Church— providing for the care of orphaned and abandoned children.” (3)
“Whether with or without government participation, Catholic foster care agencies in Philadelphia and other cities have a long record of finding homes for children whose parents are unable or unwilling to care for them. Over the years, they have helped thousands of foster children and parents, and they take special pride in finding homes for children who are hard to place, including older children and those with special needs.” (5)
“Recently, however, the City has barred Catholic Social Services (CSS) from continuing this work. Because the Catholic Church continues to believe that marriage is a bond between one man and one woman, CSS will not vet same-sex couples. As far as the record reflects, no same-sex couple has ever approached CSS, but if that were to occur, CSS would simply refer the couple to another agency that is happy to provide that service—and there are at least 27 such agencies in Philadelphia.” (5)
“By ousting CSS, the City eliminated one of its major sources of foster homes. And that’s not all. The City went so far as to prohibit the placement of any children in homes that CSS had previously vetted and approved. Exemplary foster parents like petitioners Sharonell Fulton and Toni Lynn Simms-Busch are blocked from providing loving homes for children they were eager to help.19 The City apparently prefers to risk leaving children without foster parents than to allow CSS to follow its religiously dictated policy, which threatens no tangible harm.” (6–7)
“CSS’s policy has not hindered any same-sex couples from becoming foster parents, and there is no threat that it will do so in the future.” (74)
“CSS’s policy has only one effect: It expresses the idea that same-sex couples should not be foster parents because only a man and a woman should marry. Many people today find this idea not only objectionable but hurtful. Nevertheless, protecting against this form of harm is not an interest that can justify the abridgment of First Amendment rights.” (74)
“We have covered this ground repeatedly in free speech cases. In an open, pluralistic, self-governing society, the expression of an idea cannot be suppressed simply because some find it offensive, insulting, or even wounding. . . . The same fundamental principle applies to religious practices that give offense. The preservation of religious freedom depends on that principle.” (74–75)
“Suppressing speech—or religious practice—simply because it expresses an idea that some find hurtful is a zero-sum game. While CSS’s ideas about marriage are likely to be objectionable to same-sex couples, lumping those who hold traditional beliefs about marriage together with racial bigots is insulting to those who retain such beliefs.” (75)
Justice Gorsuch (joined by Justice Thomas and Justice Alito):
“Smith failed to respect this Court’s precedents, was mistaken as a matter of the Constitution’s original public meaning, and has proven unworkable in practice. A majority of our colleagues, however, seek to sidestep the question. They agree that the City of Philadelphia’s treatment of Catholic Social Services (CSS) violates the Free Exercise Clause. But, they say, there’s no ‘need’ or ‘reason’ to address the error of Smith today.” (1)
“If CSS is unwilling to provide foster-care services to same-sex couples, the City prefers that CSS provide no foster-care services at all.” (8)
“The City has made clear that it will never tolerate CSS carrying out its foster-care mission in accordance with its sincerely held religious beliefs. To the City, it makes no difference that CSS has not denied service to a single same-sex couple; that dozens of other foster agencies stand willing to serve same-sex couples; or that CSS is committed to help any inquiring same-sex couples find those other agencies. The City has expressed its determination to put CSS to a choice: Give up your sincerely held religious beliefs or give up serving foster children and families.” (8)
For Further Reading:
- Explainer: What you need to know about Fulton v. Philadelphia by ERLC Staff
- Explainer: Supreme Court to hear case about faith-based foster care by ERLC Staff
- What happened at the SCOTUS case on foster care and religious liberty? by Policy Staff
- Lori Windham on Fulton v. Philadelphia, the Supreme Court foster-care case