Fulton and the Future of Religious Liberty

By: Megan Coates, Staff Member, Vol. 19


The Supreme Court recently heard oral argument in Fulton v. City of Philadelphia. In this case, a Catholic foster care agency resisted the City’s policy requiring agencies to certify same-sex couples as foster parents. Before reaching the Supreme Court, Fulton was heard at the Third Circuit, where the City of Philadelphia won its case. During oral argument, a majority of the Court signaled support  for religious liberty over the anti-discrimination interest asserted by the City.

Three decades ago, in Employment Division v. Smith, the Supreme Court held that religious beliefs do not excuse an individual from following “generally applicable laws.” Laws are considered “generally applicable” when they apply to all regardless of religious motivations and are not aimed to a particular religious practice. In Smith, Justice Scalia reasoned that allowing religious exceptions to generally applicable laws “would open the prospect of constitutionally required exemptions from civic obligations of almost every conceivable kind.”

Now, the Court is considering: (1) what a religious organization must prove to succeed in a free exercise claim; (2) whether to revisit its decision in Employment Division v. Smith; and (3) whether the government violates the First Amendment by conditioning a religious agency’s ability to participate in the foster care system on taking actions and making statements that directly contradict the agency’s religious beliefs.

This case carries significant implications. A flurry of litigation has been at the center of the debate on balancing religious liberty interests with the harm created by discrimination against LGBT individuals. As the Court grapples with these issues, the decisions will have profound impacts on people’s lives—religious and secular alike. With Justice Amy Coney Barrett’s confirmation to the Court, a new conservative majority could expand religious liberty, maybe even as it pertains to generally applicable laws. It remains to be seen how Justice Barrett, a former clerk to Justice Scalia, and the other justices will balance the issues in this case.

The Facts

The City of Philadelphia contracts with foster care agencies to find homes for children in need. Whenever there is a child in need of a home, the City will refer the child to one of the foster care agencies. Catholic Social Services (CSS) works to both evaluate homes and place children in specific homes with families. CSS sees its role in working with families as a ministry through which they continue the work of Jesus by serving children and families.

Here, the conflict arose when Catholic Social Services expressed that they would not certify same-sex couples as foster parents because it would violate the Church’s longstanding teaching on marriage. Ultimately, the City decided it would not continue to work with CSS if the organization refused to certify same-sex couples, which the City considered a violation of its anti-discrimination laws. The City initiated an “intake freeze” that prohibited CSS from participating in the foster care program. As a result, CSS filed suit in district court asking for a preliminary injunction to permit CSS to continue as part of the existing foster care program. The district court denied CSS’s request for an injunction, and the Third Circuit upheld the district court’s decision.

The Third Circuit Decision

The Third Circuit agreed with the district court and concluded that CSS was not entitled to an injunction, as it viewed the nondiscrimination policy as neutral and generally applicable. The Third Circuit decided that under Smith, there was no exception from this policy for religious belief.

The Third Circuit found no hostility to religion, distinguishing this case for Lukumi and Masterpiece Cakeshop. It determined that the Supreme Court’s decisions in both Masterpiece Cakeshop and Lukumi were based on government’s treating religious groups worse than secular organizations because of their religious status. The Third Circuit pointed out that in those cases, the Court pointed to specific evidence, particularly comments by legislators, that display open hostility toward religion. Here, the Third Circuit determined that CSS was not treated any worse for their religious convictions than any secular group.

Before the Supreme Court: Oral Argument

The Supreme Court granted certiorari and heard oral argument on November 4, 2020. During oral argument, the conservative justicees signaled strong support for religious liberty—Justice Alito even indicated a willingness to overrule Smith. The Court’s newest addition, Justice Amy Coney Barrett, seemed “less enthusiastic” about overruling Smith, however, she did probe the City’s counsel with hypotheticals involving a Catholic hospital and a regulation requiring that hospital to perform abortions. Justice Kavanaugh expressed sympathy for both the discrimination concern and religious issue but overall seemed to land on the side of religion.

In contrast, Justices Breyer and Kagan likened LGBT discrimination to racial discrimination and rejected any suggestion that the two were meaningfully different.

The Future of Fulton and Beyond

Going forward, it remains unclear what the Court will decide, but it seems likely that it will deliver a victory for religious liberty. The salient question is whether the Court will overrule Smith in the process and what the consequences will be if it does. Some individuals fear that overruling Smith would put virtually every state ordinance at risk of religious liberty challenges, citing the diversity of religion in the United States as evidence that chaos is inevitable. Others, however, argue that no need exists to overrule Smith in this case, noting that the Court could follow the logic of Masterpiece Cakeshop and Lukumi and rule that Philadelphia’s regulation is hostile toward religion, and therefore neither neutral or generally applicable.

As shown in Masterpiece Cakeshop, the Court seems most concerned with hostility towards religious people. In that case, the Court honed in on comments made by the Colorado Civil Rights Commission that referred to the Petitioner’s beliefs as “despicable” and showed open hostility to religious beliefs. As a result of those statements, the Court found the law hostile to religion.

It is highly unlikely that the Court, as favorable to religion as it may seem to be, will overrule Smith. Rather, the Court is more likely to find hostility exists. Legal scholar Helen Alvaré points out that the City of Philadelphia has a contentious history with the Catholic Church, as the mayor “invited Pope Francis to ‘kick some ass’ in the Archdiocese of Philadelphia[.]” This previous hostile relationship between the Church and the City could have an impact in the Court’s decision.

As it did in Masterpiece Cakeshop, the Court will likely look to specific conversations that occurred between CSS and the City and consider the City’s history with the Catholic Church. In choosing to focus on hostility, the Court could continue to send the message that animosity towards religious individuals will not be tolerated without overruling precedent—which is likely an appealing option to conservative jurists.  

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