Depending on who you ask, the Supreme Court’s recent decision in Fulton v. City of Philadelphia, 141 S. Ct. 1868 (2021), is either a huge victory or a huge disappointment. In this 9-0 decision, the Court struck down a City of Philadelphia policy that sought to force Catholic Social Services (CSS) to certify same-sex couples as foster families against their religious beliefs. While Fulton is certainly a victory for advocates of religious liberty, some justices thought it was a missed opportunity. Ultimately, the disagreement hinged on an oft debated case – Employment Div., Dept. of Human Resources of Ore. v. Smith. 

Factual Background

The City of Philadelphia contracts with private foster care agencies to facilitate the placement of foster children with foster families. Under the contract, the agencies are responsible for vetting and certifying appropriate foster families. Then, the city will refer potential foster children in its custody to an agency so they may place the children with a certified foster family. CSS has been placing foster children in Philadelphia homes for more than 50 years. Consistent with their Catholic faith, and as an arm of the local Catholic diocese, CSS believes that marriage is a sacred bond between a man and a woman. Because of this, it will not certify unmarried couples or same-sex couples as foster families. 

After a 2018 news article publicizing this, the city gave CSS an ultimatum: certify same-sex couples or lose your contract and be out of the foster care business in Philadelphia. To justify this decision, the city cited a non-discrimination requirement in the contract that provides an agency cannot reject a foster family based upon their sexual orientation “unless an exception is granted by the Commissioner … in his/her sole discretion.” The city also cited its Fair Practices Ordinance as justification, which prohibits denying “public accommodations” to individuals based on their sexual orientation.

Procedural History

CSS and three of their affiliated foster families filed a § 1983 action seeking to enjoin the city’s policies in the Eastern District of Pennsylvania. They argued the city’s actions violated the Free Exercise Clause of the First Amendment, which provides that “Congress shall make no law … prohibiting the free exercise” of religion. CSS’s position was that because it believes family certification is an endorsement of the couple’s relationship, being forced to certify same-sex couples against their beliefs burdens the free exercise of their religion. The city responded that all an agency does when it certifies a family is satisfy statutory criteria.

The district court denied the injunction, holding that under Employment Div., Dept. of Human Resources of Ore. v. Smith, 494 U.S. 872 (1990), the non-discrimination requirement in the contract and the Fair Practices Ordinances were lawful “neutral and generally applicable” policies. The Third Circuit affirmed, again applying the “neutral and generally applicable” standard from Smith. On certiorari, the Supreme Court was asked to decide whether the city’s policies violated the Free Exercise Clause and to overturn Smith. 

Majority Opinion

While all nine justices agreed the city acted illegally, there was a 6-3 split on the how to get there. Chief Justice Roberts penned the majority opinion, and was joined by Justices Breyer, Sotomayor, Kagan, Kavanaugh and Barrett.

Generally speaking, laws burdening a fundamental right, such as the free exercise of religion, are subject to the “strict scrutiny.” However, under Smith, a law that incidentally burdens ones free exercise of religion – regardless of the severity – is not subject to strict scrutiny if said law is “neutral and generally applicable.” Smith has been a controversial case since it was decided 31 years ago and is often characterized as an incorrect reading of the Free Exercise Clause. Many believed Fulton was the vehicle to do away with Smith and replace it with a new test. The court, however, declined. 

The majority’s position was that the facts in Fulton fell outside the scope of Smith’s purview. In other words, the court held the city’s contract and ordinance were not “generally applicable,” and therefore revisiting Smith was unnecessary. A law is “generally applicable” when it “invites the government to consider the particular reasons for a person’s conduct by providing a mechanism for individualized exemptions.” Where an individual exemption mechanism exists, the government may not refuse to extend that exemption in cases of “religious hardship” without a “compelling reason.” Further, a law or policy is not generally applicable if it prohibits religious activity while permitting secular activity that “undermines the government’s asserted interests in a similar way.”

Applying this test, the court held the non-discrimination provision in the city’s contract with foster agencies is not generally applicable because it “incorporates a system of individual exemptions … at the ‘sole discretion’ of the Commissioner.” Indeed, the city was adamant that it was never going to grant CSS an exemption for its religious belief. The court reminded them that without a “compelling reason” this practice was unlawful.

Additionally, the court held the city’s Fair Practices Ordinance could not save them because foster care agencies are not “public accommodations,” and thus not subject to the general applicability analysis. Public accommodations are places or products that are made “available” to the public. The court reasoned the certification process is understandably an inherently customized and subjective probing of a potential foster parents’ character, and therefore not made “available” to the public. Indeed, the court noted “[s]uch inquiries would raise eyebrows at the local bus station.”

Therefore, because the city’s non-discrimination requirement burdened the religious exercise of CSS and was not generally applicable, strict scrutiny applied. The city’s policy could only survive if it were narrowly tailored to advance an interest “of the highest order.” The court phrased the ultimate question as “not whether the City has a compelling interest in enforcing its non-discrimination policies generally, but whether it has such an interest in denying an exception” to CSS.

One of the compelling interests the city put forth for denying the exception was to “maximize the number of foster parents.” Ironically, though no same-sex couple had ever sought certification of CSS, and if one did, they would be directed to the more than 20 other foster care agencies that certified same-sex couples. The court saw right past this argument, noting that keeping CSS in the program “seems likely to increase, not reduce, the number of available foster parents.” Therefore, the court held the city’s refusal to grant an exception and continue contracting with CSS could not survive strict scrutiny, and thus violated the First Amendment. 

Barrett Concurrence

While Justice Barrett joined the majority opinion in full, she penned a separate concurrence to make her skepticism of Smith known. Joined by Justice Kavanaugh and Justice Breyer (in all but the first paragraph), Justice Barrett notes that the historical record and text of the Constitution seem to support overturning Smith but raises several questions as to what post-Smith free exercise jurisprudence will look like. Regardless, she concludes there is no need to decide those questions in Fulton. 

Alito and Gorsuch Concurrences

In two scathing concurrences spanning 87 pages, Justices Alito and Gorsuch – joined by Justice Thomas – take turns criticizing the majority for not taking Smith head on. They argue that by not overruling Smith, the majority opinion “might as well be written on the dissolving paper sold in magic shops.” In their view, the majority opinion gives the city the green light to fall back on Smith’s general applicability rule by removing the discretionary exemption mechanism from its contract and then continue its refusal to contract CSS – in effect making Fulton irrelevant.

Takeaways

The significance of Fulton cannot be overstated. In a world defined by culture wars, not one justice picked up the pen in defense of Philadelphia. However, it is equally important to note that six of sitting justices are now on record stating Smith is incorrect. Only time will tell if the city is bold enough – in the face of a 9-0 opinion – to remove the discretionary exemption clause in its contract and make CSS bend the knee as Justice Alito suggests. If it does, perhaps Fulton II will be the dagger that does away with Smith once and for all. 

Andrew M. Hale is an associate attorney with Kramer Rayson LLP in Knoxville. He obtained both his undergraduate and law degree from the University of Tennessee. He has a broad practice that includes employment law, general business, corporate and commercial law, estate planning, municipal law, insurance defense and general litigation. He may be contacted at ahale@kramer-rayson.com or 865-525-5134.