Explainer: What the Fulton case means for religious liberty
By / Jun 25

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.

Top quotes from Fulton v. Philadelphia opinion
By / Jun 17

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: The Supreme Court affirms faith-based foster care and adoption providers
By / Jun 17

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.

“The government has many God-given duties, but punishing a group for its theology is emphatically not one of them,” said Daniel Patterson, acting president of the ERLC, in response to the Court’s decision this morning. Patterson’s comment continued: 

“It’s important to note as well that this decision prohibits no one from serving children — it simply ends state discrimination against religious groups. We must all remember what matters most is caring for children. If the government boxes out religious organizations and prohibits them from providing foster care and adoption services, the net effect is a massive shortage of available homes. Children in need should not be collateral damage in a culture war.”

While there were several concurring opinions, the justices, the Court held unianimously that the “refusal of Philadelphia to contract with Catholic Social Services (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.”

What is this case about?

In 2018, a reporter from the Philadelphia Inquirer informed the City of Philadelphia’s Department of Human Services that two of its private foster care agencies, including CSS, would not work with same-sex couples as foster parents. The city investigated the allegation, which it considered a violation of the City’s anti-discrimination laws. When the agencies confirmed their religious views on marriage as essential for placement—although no same-sex couple had ever attempted to partner with CSS—the department ceased referring foster children to them and demanded they change their religious practices or close down their ministries. 

The plaintiffs in this case are Sharonell Fulton and Toni Simms-Busch, foster moms who wanted to continue caring for children in need. Fulton and Simms-Busch filed a lawsuit on behalf of CSS claiming the Philadelphia government had violated their rights under the First Amendment’s Free Exercise, Establishment, and Free Speech Clauses, as well as under Pennsylvania’s Religious Freedom Protection Act. The lawsuit asked the courts for an order requiring the city government to renew their contractual relationship while permitting CSS to maintain their religious convictions. In July 2018, the district court denied the request, and the case was immediately appealed to the Third Circuit Court of Appeals. However, the Court ruled against CSS and refused to protect the agency while its litigation proceeded to the U.S. Supreme Court. 

On the day of the oral arguments in D.C., Simms-Busch noted her gratitude that the justices “took our arguments seriously and seemed to understand that foster parents like me just want to provide loving homes for children.” Fulton added, “As a single woman of color, I’ve learned a thing or two about discrimination over the years—but I’ve never experienced the vindictive religious discrimination the City’s politicians have expressed toward my faith.” For more of the background on this case, see our explainer.

What is the significance of this case?

Today’s decision in Fulton is a critical win for religious liberty and children in need. People of faith have a right to serve children in need free of discrimination from the state. Now that the Supreme Court has clarified protections under the First Amendment, CSS can continue serving in Philadelphia at a time in which the city has called for more homes due to a foster care crisis. 

“Today’s Fulton decision is good news for children and families because we need a foster care system that welcomes all who are qualified to serve all who are in need,” noted Chelsea Patterson Sobolik, policy director for the ERLC, on the importance of the ruling for the child-welfare community. 

Sobolik also explained that, “Christians and the institutions formed from our churches are critical to the foundation of foster care in this country. Children are best served when we all work together.” Recent research from Barna revealed that practicing Christians are more than twice as likely to adopt relative to the general population, as highlighted by Becket Fund for Religious Liberty in a fact sheet on faith-based communities involvement in foster care. 

There are 423,997 children in the U.S. foster care system, and approximately a fourth of those children are eligible for adoption. The Supreme Court’s ruling today means that more children will find safe, permanent, and loving homes, because CSS will continue to be able to serve those in need. 

What did the Court rule?

The Court held that the City of Philadelphia infringed Catholic Social Services’ free exercise rights by refusing to renew its contract with CSS on the basis of the City’s agency contract and citywide Fair Practices Ordinance. These ordinances were in conflict with CSS’s core beliefs related to marriage and sexuality, and Philadelphia provided no religious exemption for CSS or groups like CSS.

This ruling was based on several arguments. First, the Court held that the City’s policies and ordinance were not “generally applicable,” and therefore were subject to a greater degree of scrutiny by the courts. The Court further argued, “Government fails to act neutrally when it proceeds in a manner intolerant of religious beliefs or restricts practices because of their religious nature.” Second, the Court held that CSS was not a “public accommodation” under the City’s ordinance. And third, the Court held that the City’s government interest in expanding LGBT rights was not sufficiently compelling to override CSS’s religious freedom rights. 

On this last point, it is worth quoting this key section of the Court’s reasoning:

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. Once properly narrowed, the City’s asserted interests are insufficient. 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.

How did the ERLC engage in this case? 

The ERLC has been involved in this case specifically, and these issues more broadly, for years. For Fulton, submitted an amicus brief to the Supreme Court alongside a diverse coalition of churches and religious institutions. 

The brief argued that Employment Division v. Smith should be overruled because it’s “unworkable standard” has been a “disaster for religious freedom.” This matters for Fulton because “Philadelphia violated the Free Exercise Clause when it excluded Catholic Social Services as a foster care provider.” The Employment Division v. Smith case ruled that burdens resulting from neutral and generally applicable laws that target specific religious practices are not subject to strict scrutiny under the Free Exercise Clause. The ERLC also filed an amicus brief at the Third Circuit before the case reached the Supreme Court.

What about Justice Alito’s Concurrence? 

Some advocates note that Justice Alito was concerned about the durability of this ruling. In his concurring opinion, Justice Alito wrote, “this decision might as well be written on the dissolving paper sold in magic shops” because “if the City wants to get around today’s decision, it can simply eliminate the never-used exemption power.” Justice Alito  goes on to predict that “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.” Justice Alito goes on to critique Smith by stating that “we should reconsider Smith without further delay. The correct interpretation of the Free Exercise Clause is a question of great importance, and Smith’s interpretation is hard to defend.”

Justice Alito may be right that the Court will soon need to squarely decide whether Employment Division v. Smith is good law, and indeed, there are several cases on their way to the High Court that invite the Court to answer that question. In the meantime, this unanimous decision by the Court affirming the religious freedom rights of child welfare providers provides welcome answer to a question dividing courts today.

What does today’s ruling mean moving forward?

The Court’s decision strengthened and clarified the Free Exercise Clause of the First Amendment. This case provides reassurance for religious institutions at a time when the meaning and scope of civil rights laws are in flux. This will benefit religious institutions across that country that seek to serve children in need without violating their sincerely held beliefs. 

The child welfare system needs as many agencies seeking to care for vulnerable children as possible, and the Fulton decision simply means that the state should not punish providers and families for their faith. Children are best served when we all work together.

The ERLC will continue to engage our culture with the gospel of Jesus Christ in the public square to protect religious liberty and promote human flourishing. We will continue to work to ensure that vulnerable children in our nation can find safe, permanent, and loving homes.

For Further Reading: