Article  Religious Liberty  Religious Liberty

Explainer: What the Fulton case means for religious liberty

Pastor Appreciation Month

Last week the Supreme Court issued its unanimous ruling in favor of a faith-based foster care and adoption provider. In the case of Fulton v. City of Philadelphia, all nine justices agreed that the city government of Philadelphia infringed on the free exercise rights of Catholic Social Services by refusing to renew that organization’s contract to serve as a foster care and adoption provider. But this ruling may have a narrow application and, as one Supreme Court justice noted, might not even provide lasting protection for Catholic Social Services.

Here is what this case might mean for religious liberty.

What was the Fulton case about?

Like many cities throughout the United States, Philadelphia works with private agencies to assist with foster care and adoption services. Catholic Social Services (CSS) is one of 30 agencies that work with the city by performing such vital tasks as vetting potential adoptive and foster families. Because the decisions of CSS are guided by their Catholic beliefs, the agency does not certify either unmarried heterosexual couples or same-sex couples. No homosexual couples have ever sought out their servies, but CSS says they would refer them to another agency if that were to ever happen. 

When the Philadelphia Inquirer pointed out the policy of CSS to the city government, the City of Philadelphia’s Department of Human Services launched an investigation. The department said CSS’s position was discriminatory against the LGBTQ community and demanded the organization either change its policy or lose the contract with the city. The commissioner even told representatives of CSS it should follow “the teachings of Pope Francis,” that “times have changed,” “attitudes have changed,” and it is “not 100 years ago.” After that meeting, Philadelphia canceled CSS’s contract to provide foster care referrals to the city. 

Two Catholic women who were certified through CSS, Sharonell Fulton and Toni Simms-Busch, filed a lawsuit challenging the city’s unlawful exclusion of the Catholic agency.

What were the legal issues in the case?

According to the original lawsuit, three legal questions presented in this case were:

  1. Whether free-exercise plaintiffs can only succeed by proving a particular type of discrimination claim — namely, that the government would allow the same conduct by someone who held different religious views (as two circuits have held) — or whether courts must consider other evidence that a law is not neutral and generally applicable (as six circuits have held).
  2. Whether Employment Division v. Smith should be revisited. (In that case, the court ruled, it has never held that an individual’s religious beliefs excuse him from complying with an otherwise valid law prohibiting conduct the government is free to regulate.)
  3. Whether a government violates the First Amendment by conditioning a religious agency’s ability to participate in the foster-care system by taking actions and making statements that directly contradict the agency’s religious beliefs.

Many advocates of religious liberty were hoping the Court would focus on number two and use this case to overturn the Smith decision. 

What is the significance of the Employment Division v. Smith case?

In the years prior to the early 1960s, U.S. federal courts only allowed exemptions for religious objections if such exemptions were explicitly allowed by statute. In the 1963 case Sherbert v. Verner the Court changed this standard and adopted the constitutional exemption model, under which sincere religious objectors had a presumptive constitutional right to an exemption because of the Free Exercise clause.

The Court thus began to rely on the standard of “strict scrutiny” when the law imposed a “substantial burden” on people’s religious beliefs. Under this strict scrutiny standard, religious objectors were to be given an exemption, unless denying the exemption was the least restrictive means of serving a compelling government interest. This lasted from 1963 to 1990, when the court rejected the constitutional exemption regime and reverted back to the statute-by-statute exemption in its ruling on Employment Division v. Smith. (As a result of the Smith decision, Congress enacted the Religious Freedom Restoration Act (1993), which gave religious objectors a statutory presumptive entitlement to exemption from generally applicable laws, subject to strict scrutiny.)

In their comments on the Fulton case, several justices (Thomas, Gorsuch, and Alito) said they wanted to overturn the standard set by Smith. But in his ruling, Chief Justice Roberts said, “This case falls outside Smith because the City has burdened CSS’s religious exercise through policies that do not satisfy the threshold requirement of being neutral and generally applicable.”

How will this ruling affect future religious liberty cases?

Although the ruling is a victory for religious liberty, the Fulton decision is unlikely to have broad ramifications on other cases. The basis for the court’s ruling is a clause included in contracts by the City of Philadelphia that give city officials the power to grant certain exemptions. The city government said it has never given out such an exemption and had no intention of providing one to CSS based on their religious beliefs. As Justice Alito wrote in his concurring opinion, all the city has to do to make it legal for them to discriminate against CSS and other faith-based providers is to strike that exemption language from its contracts: 

This decision might as well be written on the dissolving paper sold in magic shops. The City has been adamant about pressuring CSS to give in, and if the City wants to get around today’s decision, it can simply eliminate the never-used exemption power. If it does that, then, voilà, today’s decision will vanish—and the parties will be back where they started. The City will claim that it is protected by Smith; CSS will argue that Smith should be overruled; the lower courts, bound by Smith, will reject that argument; and CSS will file a new petition in this Court challenging Smith. What is the point of going around in this circle?Because the ruling was based on such narrow grounds, the Fulton decision is unlikely to have a long-term impact on similar cases. For religious freedoms to be adequately protected, the Supreme Court will likely need to overturn the standard set in Employment Division v. Smith.

Pastor Appreciation Month


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