Last week, the Supreme Court handed down its decision in the Catholic adoption services case, Fulton v. City of Philadelphia. The case concerned whether the city of Philadelphia could require Catholic Social Services (CSS) to place children with same-sex couples, notwithstanding CSS’s religious objections, as a condition of participating in the city’s foster care system. Many Court watchers believed the justices would use Fulton as an opportunity to overrule a 1990 decision, Employment Division v. Smith, which critics say offers too little protection for religious freedom. Some observers anticipated a broad ruling on the conflict between public accommodations laws that guarantee equal treatment for same-sex couples and the free-exercise rights of religious objectors.
There were good reasons for both expectations. Four justices—Alito, Thomas, Gorsuch, and Kavanaugh—had hinted in an earlier case that they were willing to revisit Smith, and the Fulton Court granted cert precisely to consider that question. Moreover, Fulton seemed squarely to present a conflict between Philadelphia’s Fair Practices Ordinance (FPO), which forbids discrimination based on sexual orientation in public accommodations, and CSS’s religious objections to placing children with same-sex couples. If the Court wished to issue a definitive ruling on the conflict between LGBT rights and religious freedom, Fulton seemed an obvious occasion to do so.
These expectations were not fulfilled. The Court handed down a fifteen-page ruling in favor of CSS but declined to overturn Smith. The decision was a victory for religious freedom, and perhaps even a decisive one, depending on how the justices apply the case in future. But the Court relied on a nimble—perhaps too nimble—construction of the statutory and contractual provisions at issue that allowed it to avoid broader issues. As in Masterpiece Cakeshop four years ago, the justices ruled in favor of religious freedom, but did so in a fact-specific way that almost guarantees future litigation.
For more than 50 years, Philadelphia has contracted with CSS to place children with foster families. From religious conviction, CSS does not place children with same-sex couples (or unmarried opposite-sex couples). Apparently, no same-sex couple has ever asked to be included on CSS’s roster of potential foster parents; if such a couple were to do so, CSS says, it would refer the couple to one of the many other adoption agencies that also contract with the city and do place children with same-sex couples. But in 2018, the city notified CSS that it would no longer refer children to the agency unless CSS agreed to place children with same-sex couples. The city maintained that CSS’s conduct violated both the FPO and a non-discrimination clause in its contract.
CSS sued, arguing that the city’s action violated its free-exercise rights under the First Amendment. Smith provides the applicable rule. A “neutral” and “generally applicable” law, one that applies across the board and only incidentally burdens religion, does not violate the First Amendment. By contrast, a law that targets religion must survive “strict scrutiny”: The law must advance a compelling state interest and do so in a way that restricts religion only as far as necessary. Critics have long maintained that by carving out the category of “neutral” and “generally applicable” laws, Smith offers too little protection for religious exercise. These critics argue that strict scrutiny should apply whenever a law substantially burdens a claimant’s religious exercise.
In Fulton, the lower courts held that Philadelphia’s non-discrimination policy was generally applicable and thus consistent with the First Amendment. The policy applied across the board to all adoption agencies, regardless of religious affiliation, and so could not be said to target religion for unfair treatment. In last week’s ruling, written by Chief Justice Roberts for himself and five other justices, the Supreme Court disagreed. Philadelphia’s policy was not generally applicable, the Court held; strict scrutiny was appropriate under Smith, and Philadelphia’s policy failed the test. Overruling Smith was unnecessary and revisiting the decision could await another day.
Here is where the Court’s nimble statutory and contract interpretation made a difference. The Court held that the city’s anti-discrimination ordinance did not even apply to this case, since adoption agencies do not qualify as public accommodations for purposes of Pennsylvania law. This was a surprising interpretation of the FPO, to say the least. Indeed, in a separate concurrence, Justice Gorsuch noted that none of the 80 briefs in the case had thought the issue important enough to address. But the Court’s narrow interpretation allowed it to avoid addressing the broader conflict between state non-discrimination laws and the rights of religious objectors.
Regarding the non-discrimination clause in CSS's contract, the Court noted that the city’s standard agreement with adoption agencies, including CSS, allowed the city to grant exceptions to the requirement in its “sole discretion.” This was, again, a contestable interpretation, and according to Justice Gorsuch, none of the briefs had argued for it at the Supreme Court level. The city had never granted an exception and apparently had no plans to do so. But according to the Court, the theoretical possibility of an exception meant that Philadelphia’s contractual non-discrimination policy was not generally applicable and thus subject to strict scrutiny, even under Smith.
Under strict scrutiny, the Court held, the city had failed to show that it had a compelling interest in holding CSS to its non-discrimination policy. The Court’s reasoning was brief, only a few sentences. The chief justice conceded that the city’s interest in promoting equal treatment of prospective foster parents was a “weighty” one, generally. But that interest did not justify denying an exemption to CSS, in particular, when exceptions were theoretically available to others.
Fulton is surely a victory for religious freedom. In fact, if the Court means what it says, the case is a major victory. True, the chief justice’s opinion avoids a definitive resolution of the conflict between LGBT rights and religious freedom—which probably explains how the chief captured the votes of the Court’s progressives, Breyer, Sotomayor, and Kagan. And true, Smith remains on the books, a result that Justice Alito, joined by Justices Thomas and Gorsuch, lamented in a separate concurrence.
But if it is true, as Fulton suggests, that even a theoretical possibility of an exception triggers strict scrutiny, Smith does not pose much of a limitation. Moreover, if the Court is serious about strict scrutiny—that the mere possibility of an exception means that the state lacks a compelling interest in applying its rule to any particular litigant—it is hard to envision a religious claimant ever losing one of these cases in future.
Nonetheless, it would be wise for religiously affiliated adoption agencies and other potential claimants to wait and see what develops before celebrating. The Court’s religion clause jurisprudence is notoriously unpredictable, and the justices may not stick to Fulton’s reasoning in the future. Moreover, the fact-specific nature of the ruling means that the Court can easily distinguish Fulton in subsequent litigation if it wishes to do so. As Justice Alito observed, if the city rewrites its contracts to eliminate any possibility of an exception, or if the Pennsylvania courts interpret the FPO in a way that makes clear the ordinance does indeed apply to adoption agencies, these parties will be right back in court. Conflicts between LGBT rights and religious freedom tend to last a long time. Just ask the owner of Masterpiece Cakeshop.
Mark Movsesian is the Frederick A. Whitney Professor and Co-Director of the Center for Law and Religion at St. John's University.
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