Fulton v City of Philadelphia: In Which SCOTUS Takes 110 Pages to Accomplish Almost Nothing

It is near the end of SCOTUS opinion season, that late spring tradition of edicts from the high court trickling in over the course of several weeks. It’s a season of prognosticating: How will they rule? Who will write the opinion? And a season of worry: How will they rule? Who will write the opinion?

It is also tradition that the “biggest” cases — generally meaning cases important to the culture wars, and those with big impacts — come last. Arguably, even cases less interesting on their surface can have huge impacts, but it is cases involving things like gun rights, abortion, and lgbtq+ issues that are amid the swirl of public discourse and anticipation.

This year, Fulton v City of Philadelphia was one of the Big Ones, along with challenges to the ACA, voting rights, and student athletes vs. the NCAA. Those last two are still pending along with 16 others, but this week, we learned that the ACA had survived the challenges. We also learned of the decision in Fulton.

Fulton involves Catholic Social Services (CSS) of Philadelphia, who for decades has contracted as a foster agency for the city. Recently, the city notified the agency that their contract would not be renewed unless they promised to certify same sex couples as foster parents. The lawsuit challenging the city’s policy, citing religious freedom, brought by the organization and three of its foster families. The named plaintiff is Sharonell Fulton, one of the organization’s foster parents.

There is no same sex couple as a party to this suit. It is not a case in which prospective same-sex foster parents have been denied certification, and in fact there is no evidence that CSS has been approached by or has turned away  LGBTQ+ couples – though they admit they would refer them elsewhere. The injury claimed is not one of sexual orientation discrimination but of its frequent counterbalance, religious freedom.

The two issues are ever at odds. The saying goes that one’s rights end where they begin to infringe on the rights of another, but there are two ends to be reckoned with here. Do the rights of same-sex couples to foster children end where the right of a religious organization to act in accordance with its own beliefs  begins, or does the latter end where the rights of LGBTQ+ folks not to be discriminated against begin?

Some facts to know that can help frame this issue before we dive into the legal rationale of the Court’s opinion:

• There are over 20 foster placement agencies in the City of Philadelphia
• CSS does not object to certifying single LGBTQ+ individuals for fostering, only married couples of the same sex
• The organization also refuses to certify unmarried couples
• The organization offers its placement service to LGBTQ+ children

Let us pause right here for a moment: None of these facts are meant to suggest that I side with the CSS or that I agree or disagree with the Court’s decision; I merely point them out to clarify the specifics of what is at issue. But I feel compelled also to say this: If The Catholic Church, as an institution, is as concerned about associating itself with “sin” as it claims, one would think it would focus more on the horrific sexual abuse within its own walls. The church’s failure to act in that regard makes its claim here of adherence to tenets of faith appear to be a hollow excuse, and one can hardly be blamed for doubting their sincerity of principle.  However, for the purposes of objectivity of analysis, I will presume such.

After more than 50 years of providing foster placement services for the city, the CSS was told in 2018 that it would have to change its policy vis-a-vis same sex couples if it wanted to renew its contract. This occurred after the Archdiocese revealed its policy in a statement to a reporter, who was following up on a discrimination complaint against another, unrelated agency. The City of Philadelphia froze referrals to CSS, and cited its own anti-discrimination ordinance and a provision in the contract prohibiting discrimination to support its ultimatum to CSS.

The agency and three of its foster families sued the city, alleging violation of the First Amendment right to free exercise of religion. The plaintiffs sought an injunction that would require the city to continue making referrals to CSS, but the District Court denied relief. In doing so, the court cited Employment Division v Smith, the 1990 case which held that religious beliefs do not exempt one from compliance with otherwise valid laws. The Third Circuit Court of Appeals affirmed, finding the City’s policy to be “neutrally and generally applicable” as required under Smith. The plaintiff’s appeal of the Third Circuit ruling is what came before the Supreme Court.

The majority opinion in Fulton was written by Chief Justice Roberts. Based upon the Court’s practice of releasing opinions in order of seniority (with the Chief always the most senior regardless of time on the Court), after last week’s batch many thought that Roberts would pen the ruling in California v. Texas, regarding the Affordable Care Act, and feared that Alito would have Fulton, which — let’s not kid ourselves — would ensure the Catholics would win. They needn’t have worried, as it turns out. It didn’t matter who wrote the opinion because all 9 agreed that the church should prevail.

Justice Roberts begins with a brief history of the Catholic Church’s work with orphans in Philadelphia, from 1798 through the work of CSS today. CSS is a foster agency, licensed by the state of Pennsylvania, to certify foster homes. Per state law, the city contracts with agencies like CSS to investigate potential foster parents to determine their fitness. When a child is in need of foster care, the City sends requests out to its area agencies, and the agencies respond if they have an appropriate placement. As Justice Roberts puts it, “the religious views of CSS inform their work.” And of course, these views include the belief that “marriage is a sacred bond between a man and a woman.” To certify a family, according to CSS, is to endorse their relationships, which it claims it cannot do for gay couples without violating their religious principles.

The City argues –and I admit this occurred to me as well — that certification is not an endorsement of the relationship but only a finding that the requirements of foster parenting have been met. The Court rejected that argument, citing Thomas v Review Board of the Indiana Unemployment Division, another religious freedom case in which the Court state that “religious beliefs need not be acceptable, logical, consistent, or comprehensible to others in order to merit First Amendment protection.” (Good thing, I must add, since so much of what passes for religious belief these days falls into one or more of these categories.)

The City next contends that because its policy applicable to all its contractors, thus neutral and general, Smith controls and CSS loses. CSS’s response is ok, so overrule Smith. To both parties, the Court says hold your horses, in fact back them up; we don’t have to overrule Smith because the City has not satisfied its requirements. The Court found that the policy is not actually generally or neutrally applied. The relevant section of the foster agency contract reads, in pertinent part, as follows:

Provider shall not reject a child or family including, but not limited to, . . . prospective foster or adoptive parents, for Services based upon . . . their . . . sexual orientation . . . unless an exception is granted by the Commissioner or the Commissioner’s designee, in his/her sole discretion

Fulton came down to the five words in bold.

To illustrate the problem the Court analogizes this case with Sherbert v. Verner, in which a Seventh Day Adventist was fired for her refusal to work Saturdays, in accordance with her religious beliefs. Her unavailability on Saturday made it difficult for her to find new work, but she was denied unemployment benefits by the state because of her refusal “without good cause” to accept jobs that would require Saturday hours. In Sherbert, the Court held that a law is not “generally applicable” when it “invites the government to consider the particular reasons for a person’s conduct” by allowing discretionary exceptions.

To further support its finding in Fulton the Court cites another religious freedom case, Church of Lukumi Babalu Aye, Inc. v. Hialeah.  Lukumi involved the Santeria religion and the City of Hialeah’s ordinance against killing animals and outlawing animal sacrifice, a central practice of the faith. The ordinance was pretty clearly intended to target the Church, since it made sweeping exceptions for both farm businesses and private individuals raising small numbers of pigs and cattle. The law also did not apply to hunting or sportfishing, and in one case, the use of rabbits to train racing dogs. The Supreme Court quite scathingly handed the city of Hialeah, who was actually quite transparent about their intention to target the Church, a huge L.

Back to Fulton, the case at hand, the Court points out that while discretionary exemptions are provided for in the ordinance, the Commissioner has made clear they have no intention of granting one for CSS. There is no example given of an instance in which the City would allow an agency to practice discrimination in its certification process, and in fact the Commissioner has never granted one, but the existence of this exemptions clause defeats the argument that the statute is “neutrally and generally applicable.”

In sum, because the City’s contract allows them to decide who has worthy reasons to discriminate and who does not, it is not generally applicable and does not pass the test set forth in Smith. 

Turning away from the language of the contract, the City cites its own ordinance against sexual orientation discrimination by public accommodations. CSS counters that it is not a public accommodation, and the Court agrees. The ordinance defines an accommodation as a “place, provider or public conveyance, whether licensed or not, which solicits or accepts the patronage or trade of the public or whose goods, services, facilities, privileges, advantages or accommodations are extended, offered, sold, or otherwise made available to the public.” The Court does not consider the service offered by CSS as “readily accessible” to which any member of the general public who so desires may avail themselves, because the process of certification is long and rigorous, involving home studies, background checks, and medical exams and very unlike stores, restaurants, barber shops, buses, and other services traditionally considered “public accommodation.” This may be the weakest point in the opinion, in my view, because it muddles the right to be considered with the right to be certified. CSS has agreed and in fact asked the City to allow it — to perform the function of considering potential foster parents. Though not all will qualify, anyone may apply. I know of no definition of public accommodation that provides it must be an easy and noninvasive endeavor.

Having found that the City’s policy infringes on CSS’s free exercise of religion, the Court must then determine whether they have a sufficiently compelling interest to do so, applying the highest review standard, strict scrutiny. The City cites three interests: 1) maximizing the number of available foster families; 2)avoiding lawsuits by rejected same-sex couples; and 3)ensuring equal treatment of prospective foster parents and foster children. The Court finds these stated interests too broadly stated to satisfy strict scrutiny.

The question, per the Court, is what harm is done by permitting an exception for organizations like CSS. Refusing to renew CSS’s contract does not increase the number of foster families available, according to the Court, but granting an exception that allows them to participate in the program does.  The Court is also unpersuaded by the speculation of hypothetical lawsuits that the City has not faced but fears it may. The Court acknowledges that equal treatment is a “weighty” interest, but points to the City’s own provision for exceptions as a reason to dispense with this argument: “The City offers no compelling reason why it has a particular interest in denying an exception to CSS while making them available to others.” Touché.

The first concurrence was written by Justice Barrett, joined in full by Kavanaugh and in part by Breyer. Breyer parts ways with Barrett’s first paragraph, in which she states that she finds the arguments for overturning Smith compelling. However, she goes on to question the advocated alternative: strict scrutiny, even when a law is neutrally and generally applicable. After musing on the ramifications of such a “categorical” approach, she notes that the issue need not be considered further, as she agrees with the majority that the Smith test is not reached here because the City’s policy is not neutral and generally applicable.

Next comes Alito, joined by Gorsuch and Thomas. Too long; didn’t read. Seriously — Alito took up 77 pages of a 110 page case, a case that included 3 concurrences. I skimmed, however, and the biggest takeaway is that Alito would overrule Smith. Alito notes that under the majority’s opinion, simply removing the “exceptions may be granted” provision would have moved then needle to CSS’s favor as long as Smith controls. Under Alito’s favored rubric, the First Amendment’s free exercise clause should be read to bar any prohibition on religious practice, not as allowing the prohibition of a religious practice so long as everyone else is prohibited, as well. To be fair, Alito sets forth several examples of how Smith could curtail important religious practices: Prohibition, without an exception for communion; a policy prohibiting any sort of head covering in the Supreme Court chamber, with no exception of Jewish, Sikhs, or Muslims; a ban on circumcision without exception for Jewish people.¹ But it is important to note that Smith is over 30 years old now and the worst case scenarios have not come to pass.²

Alito spends some time discussing the espoused judicial philosophy of the late Justice Scalia, textualism. Under a textualist approach, Alito interprets the free exercise clause thusly:

…the ordinary meaning of “prohibiting the free exercise of religion” was (and still is) forbidding or hindering unrestrained religious practices or worship. That straightforward understanding is a far cry from the interpretation adopted in Smith. It certainly does not suggest a distinction between laws that are generally applicable and laws that are targeted.

Alito writes dozens of pages of argument against Smith, and it warrants closer reading than I gave it for any serious discussion of whether Smith should remain good law. For today, suffice to say that Alito, Thomas and Gorsuch strongly believe it should not, while also agreeing with the majority’s opinion that it is irrelevant to Fulton, because Fulton doesn’t get that far. He does express his agreement that the City’s policy does not advance a compelling state interest:

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.

Gorsuch also writes separately to lament that the majority’s ruling will likely mean that the controversy between the City and CSS continues, much in the way that Masterpiece Cake Shop’s legal battles continue, years after the Court dispensed with the case on equally narrow grounds. Gorsuch advocates an overruling of Smith as well, echoing Alito with whom he joined. He also — oh, look at that — agrees with me that the majority’s declaration that the service offered by CSS is not a public accommodation is suspect. The lower court made no such distinction, and Gorsuch does not believe the Court had any reason to revisit that determination.

In the end the Fulton decision is murky and not definitive in any meaningful way. I predict the City will do exactly what the skeptical concurrences predict, and rewrite their contracts to eliminate the “exception” clause that was deemed problematic by the Court. In the meantime, a same-sex couple, smelling blood in the water, will apply to the CSS for certification and be turned down, and file suit. The justices who fear that the decision in Fulton has only ensured that the case is just beginning are likely correct. Back to square one for the city, the CSS, Fulton, and the rest of us.

1. No doubt many who read this will not see the problem, as they do not take seriously the religious beliefs of others and therefore do not recognize these examples as impactful, which is a good argument for why religious practices must be protected.
2. On the flipside, one could speculate that Alito’s preferred interpretation would potentially permit child marriage and the evils associated therewith, or perhaps human sacrifice, should there be a resurgence of ancient Aztec and Mayan practice. However, strict scrutiny would still apply here, and one could plausibly expect that protecting people from things like homicide and sexual abuse would fall under “compelling state interests.”