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What just happened?

On Thursday, June 17, the U.S. Supreme Court issued a ruling in Sharonell Fulton, et al. v. City of Philadelphia, an important religious-liberty case involving faith-based foster care and adoption providers. The unanimous decision of the Court is that Philadelphia violated the Free Exercise Clause of the First Amendment by refusing to contract with Catholic Social Services (CSS) for foster care unless it agreed to certify same-sex couples as foster parents.

“This is a win for religious freedom and a win for children in need of families,” says TGC Council member Russell Moore. “Philadelphia should never have used the most vulnerable children as leverage to attempt to change the doctrinal beliefs of a religious institution. Some will falsely categorize the Fulton decision as discrimination when it is in fact the reverse. This majority opinion does not exclude anyone from serving—it simply ensures that religious people may continue serving, without submitting their theologies for City Council review.”

What was the case about?

The plaintiffs in this case, Sharonell Fulton and Toni Simms-Busch, are Catholic women who have extensive experience in the foster-care system. Fulton fostered 40 children, and Simms-Busch was a foster-care social worker and child advocate before fostering and adopting children herself. Both chose to partner with Catholic Social Services in Philadelphia to foster children because the agency aligned with their religious values and beliefs.

For almost 70 years, the city of Philadelphia has worked with private agencies to assist foster care. Families wishing to foster a child can consult one of the 30 agencies allowed to contract with the city, and if an agency is unable to partner with a potential foster family, the family is referred to another agency.

According to the original lawsuit, CSS “exercises its religion by caring for foster children and acting in accordance with its Catholic beliefs in the process.” Because of these beliefs, CSS cannot make foster certifications inconsistent with its religious beliefs about sex and marriage. The agency refuses to certify unmarried heterosexual couples or same-sex couples and refers such couples to another agency. (Same-sex couples have other options available. Four agencies have the Human Rights Campaign’s “Seal of Approval,” recognizing their “excellence in serving the LGBT community.”)

In 2018, the commissioner of Philadelphia’s Department of Human Services investigated whether religious agencies were certifying same-sex couples. The commissioner summoned CSS for a meeting and told the agency it should follow “the teachings of Pope Francis,” that “times have changed,” “attitudes have changed,” and it is “not 100 years ago.” Minutes later, Philadelphia cut off CSS’s foster-care referrals, meaning no new foster children could be placed with any foster parents certified by CSS. Fulton and Simms-Busch, who were certified through CSS, filed a lawsuit challenging the city’s unlawful exclusion of the Catholic agency.

What were the legal questions being considered in this case?

Three legal questions presented in this case were:

1. Whether free-exercise plaintiffs can only succeed by proving a particular type of discrimination claim—namely, that the government would allow the same conduct by someone who held different religious views (as two circuits have held)—or whether courts must consider other evidence that a law is not neutral and generally applicable (as six circuits have held).

2. Whether Employment Division v. Smith should be revisited. (In that case, the court ruled, it has never held that an individual’s religious beliefs excuse him from complying with an otherwise valid law prohibiting conduct the government is free to regulate.)

3. Whether a government violates the First Amendment by conditioning a religious agency’s ability to participate in the foster-care system by taking actions and making statements that directly contradict the agency’s religious beliefs.

In his ruling, Chief Justice Roberts said, “This case falls outside Smith because the City has burdened CSS’s religious exercise through policies that do not satisfy the threshold requirement of being neutral and generally applicable.”

What was the decision of the justices?

While all the justices agreed with the ruling, they didn’t all agree on the reasoning for it. 

Chief Justice Roberts delivered the opinion of the Court, in which he was joined by Justices Breyer, Sotomayor, Kagan, Kavanaugh, and Barrett. Justice Barrett also wrote a concurring opinion (in which she was joined by Breyer and Kavanaugh); Justice Alito wrote a concurring opinion (in which he was joined by Thomas and Gorsuch); and Justice Gorsuch wrote a concurring opinion (in which he was joined by Thomas and Alito). 

What will be the future effect of this case?

The ruling is undeniably an important victory for religious liberty. The narrow scope in which this case was decided means it likely will not set a major precedent for future cases. 

The Court’s decision is based on the fact that the city included language in its contract giving a city official the power to grant exemption. The city government said it has never given out such an exemption. The city can simply strike that exemption language, which would allow it to once again exclude CSS. As Justice Alito wrote in his concurring opinion: 

This decision might as well be written on the dissolving paper sold in magic shops. The City has been adamant about pressuring CSS to give in, and if the City wants to get around today’s decision, it can simply eliminate the never-used exemption power. If it does that, then, voilà, today’s decision will vanish—and the parties will be back where they started. The City will claim that it is protected by Smith; CSS will argue that Smith should be overruled; the lower courts, bound by Smith, will reject that argument; and CSS will file a new petition in this Court challenging Smith. What is the point of going around in this circle?

At least three justices argued in this ruling that the Smith decision should be overturned. If at least two other justices agree, it could have long-lasting effects on the already healthy direction of religious liberty in America.

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