Supreme Court Decides Fulton v. Philadelphia

On June 17, 2021, the U.S. Supreme Court decided Fulton v. Philadelphia, unanimously holding, with multiple concurring opinions, that Philadelphia violated a Catholic organization’s religious rights when it excluded that organization from a foster-care program for refusing to certify same-sex couples as foster parents.

For many decades, Philadelphia has contracted with private agencies to help run its foster-care program. When children are removed from their homes, Philadelphia assumes custody of the child and, for some children, it works through private agencies to place the children in foster care. One of these organizations is Catholic Social Services (“CSS”). For over 50 years CSS has honored its religious beliefs by not certifying same-sex or unmarried couples as foster parents. There are numerous other agencies to which CSS would refer such couples, however.

In 2018, Philadelphia refused to continue contracting with CSS for foster-care services unless CSS agreed to certify same-sex couples for foster parenting. It relied on Section 3.21 of its standard foster care contract, which currently states that a provider was not to reject a child or family based on sexual orientation unless the Commissioner or its designee grants a discretionary exception.

CSS challenged the decision as a violation of its rights under the Free Exercise and Free Speech clauses of the United States Constitution. Both the district court and the Third Circuit Court of Appeals found for the City, holding that Employment Division, Dep’t of Human Resources of Oregon v. Smith, 494 U.S. 872 (1990) compelled that result.

Although it had been asked to overrule Smith (and the concurrences would have), the Court instead found that Smith did not control the case, because the provision the City sought to have enforced was not generally applicable and thus could not satisfy the Smith test.

As a result, the Court ruled, the City could impose them on CSS only if the City could show that doing so served a “compelling government interest” and was “narrowly tailored to achieve those interests.” The Court concluded that Philadelphia had not met its burden. The Court explained: “The creation of a system of exceptions under the [foster-care] contract undermines the City’s contention that its non-discrimination policies can brook no departure. The City offers no compelling reason why it has a particular interest in denying an exception to CSS while making them available to others.” What’s more, the Court added, including CSS in the City’s foster program seemed “likely to increase, not reduce, the number of available foster parents,” and so, if anything, refusing to grant CSS an exception to its non-discrimination policy undermined Philadelphia’s interest in serving foster children.

Because of its ruling, the Court did not reach the Free Speech question.

Chief Justice Roberts delivered the opinion for a unanimous Court, in which Justices Breyer, Sotomayor, Kagan, Kavanaugh, and Barrett joined. Justice Barrett wrote a separate concurring opinion, in which Justice Kavanaugh joined in full and Justice Breyer joined in part. Justice Alito wrote an opinion concurring in the judgment, which Justices Gorsuch and Thomas joined. And Justice Gorsuch also wrote an opinion concurring in the judgment, which Justices Alito and Thomas joined.