What Fulton Did for Religious Freedom

One year ago, 32 of the nation’s largest companies, including Twitter and Google, claimed that a Supreme Court case about a Catholic agency in Philadelphia’s foster care system would disrupt their businesses, scramble the world of government contracting, and stop same-sex couples from becoming foster parents. In Fulton v. City of Philadelphia, the Supreme Court had to rule on whether the Philadelphia government could shutter Catholic Social Services, a 200-year-old foster care ministry, if it did not agree to review and certify same-sex couples as foster parents. Philadelphia conceded that no same-sex couple had ever actually been turned away by Catholic Social Services, but believed it sent the wrong message for the city to even allow this ministry to exist. Sadly, the price of eliminating the Catholic Church from participating in the city's foster care system wasn’t hypothetical. Catholic Social Services began caring for Philadelphia orphans in 1793, while the yellow fever raged. And even as Philadelphia sought to shut the doors of this foster care ministry, the city regarded Catholic Social Services as a “point of light” during an acknowledged nationwide foster care crisis. 

According to the friend-of-the-court brief that the companies filed, if the Supreme Court ruled in favor of the Catholic foster care agency and heroic foster mothers in Fulton, it would create “an unworkable array of religious exemptions to nondiscrimination laws that would make commercial transactions exceedingly difficult to navigate.” And accommodating the Catholic agency’s sincere religious beliefs would “undermine” and “greatly impair government contracting in general” by exempting religious organizations from certain contractual requirements. 

One year after the Supreme Court’s unanimous decision protecting Catholic Social Services’ ministry in Fulton, we can look back and say with confidence that these corporate and technocratic fears were overblown and exaggerated. They haven’t even come close to fruition. The Court made clear that religious exemptions are required under the Free Exercise Clause, and every justice agreed that Philadelphia violated the First Amendment by barring Catholic Social Services from certifying foster parents and partnering with the city. 

 As the Supreme Court recognized in Fulton, Catholic Social Services is just one of more than 20 diverse private agencies in the city that serve foster children. While the exact numbers might vary, the same is true across the country. A year’s worth of legal decisions and other developments confirm that businesses continue to operate, government contracts continue to be awarded, and same-sex couples continue to foster. The only difference is that religious social service agencies need no longer fear exclusion or forced closure because they minister to those in need while abiding by their sincere religious beliefs. This crucial religious accommodation signals something important: that in America, we protect the human impulse to serve others that is animated or inspired by religious beliefs. 

Two cases in Michigan in the past year offer an instructive example of Fulton’s importance. Before the Fulton decision, cases pending before two different lower courts in Michigan challenged the ability of religious foster care providers to serve those in need while adhering to their sincere religious beliefs. Immediately after the ruling came down in Fulton, the State of Michigan settled both cases, agreeing to continue partnering with religious foster agencies. The same-sex plaintiffs in those cases withdrew from the litigation and have been fostering since 2019. The situation in Michigan also confirms what the Supreme Court found true in Philadelphia: that allowing religious ministries to participate in government foster care programs “seems likely to increase, not reduce, the number of available foster parents.”  

While Fulton has yet to be cited as a justification for disrupting commercial business transactions, it has nonetheless changed the law dramatically. Fulton was the first time since 1963 that the Supreme Court rejected a government’s attempt to provide case-by-case exemptions to all but the religious. And in modern America, where much government action is administrative and discretionary, this means rigorous judicial review would apply to all manner of religious burdens. Among other things, Fulton has already required Minnesota to reconsider its decision rejecting traditional Amish building practices and helped protect a religious homeless shelter in Alaska. Fulton did this by advancing a commonsense principle: Religious freedom cannot be treated as a second-class right. While this was a major victory for religious freedom, there is still more work to be done. Though further changes may come soon, Fulton has proven to be a big step in the right direction.   

Mark Rienzi is the president and CEO of the Becket Fund for Religious Liberty and professor at the Catholic University of America, Columbus School of Law.

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