The Supreme Court Building in Washington, DC. Photo taken by Tim Sackton (CC-By-SA 2.0).
The Supreme Court of the United States Building
Photo credit: Tim Sackton (CC-By-SA 2.0)
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In Fulton v. City of Philadelphia, the Supreme Court unanimously ruled in favor of Catholic Social Services (CSS) and three-affiliated foster parents. The City of Philadelphia attempted to require CSS to place children with same-sex couples, claiming that not to do so violated the city’s nondiscrimination ordinance. If CSS refused, they would lose their contract with the city.

Instead of acquiescing to the city’s demand, CSS took them to court instead. 

I had hoped that this case would have reversed Employment Division v. Smith, a 1990 ruling written by the late Justice Antonin Scalia that said strict scrutiny did not necessarily apply to the free exercise clause provided the local or state law was “neutral and generally applicable.” 

The Third Circuit Court of Appeals, in this case, determined that the city’s contract was “neutral and generally applicable,” but the Supreme Court, in a 9-0 fashion, disagreed.

Any decision overturning Smith would likely have a 5 to 4 ruling or a 6 to 3 ruling, but with a unanimous decision, the opinion was narrower. It still is a significant opinion, however. Instead of overturning Smith, the Supreme Court said Philadelphia violated it in how they applied the nondiscrimination ordinance and contractual language. 

Chief Justice John Roberts wrote the court’s opinion. The Supreme Court decided the City of Philadelphia’s refusal to enter into a contract with CSS did violate the Free Exercise Clause of the First Amendment. 

“The nondiscrimination requirement of the City’s standard foster care contract is not generally applicable. Section 3.21 of the contract requires an agency to provide services defined in the contract to prospective foster parents without regard to their sexual orientation. But section 3.21 also permits exceptions to this requirement at the ‘sole discretion’ of the Commissioner. This inclusion of a mechanism for entirely discretionary exceptions renders the nondiscrimination provision not generally applicable,” he wrote. 

“Similarly unavailing is the City’s recent contention that section 3.21 does not even apply to CSS’s refusal to certify same-sex couples. That contention ignores the broad sweep of section 3.21’s text, as well as the fact that the City adopted the current version of section 3.21 shortly after declaring that it would make CSS’s obligation to certify same-sex couples’ explicit’ in future contracts. Finally, because state law makes clear that the City’s authority to grant exceptions from section 3.21 also governs section 15.1’s general prohibition on sexual orientation discrimination, the contract as a whole contains no generally applicable nondiscrimination requirement,” Roberts continued in the summary of his opinion. 

He also held that the certification of a foster parent did not meet the definition of “public accommodation” in Philadelphia’s nondiscrimination ordinance. 

“The Ordinance defines a public accommodation in relevant part to include a provider ‘whose goods, services, facilities, privileges, ad- vantages or accommodations are extended, offered, sold, or otherwise made available to the public.’… Certification is not ‘made available to the public’ in the usual sense of the words. Certification as a foster parent is not readily accessible to the public; the process involves a customized and selective assessment that bears little resemblance to staying in a hotel, eating at a restaurant, or riding a bus,” Roberts wrote. 

Because Philadelphia’s contract burdened the religious exercise of CSS, strict scrutiny does apply and requires the city to demonstrate a compelling interest in denying an exemption to CSS. 

According to the nine justices on the Supreme Court, Philadelphia failed to demonstrate that. 

“Under the circumstances here, the City does not have a compelling interest in refusing to contract with CSS. CSS seeks only an accommodation that will allow it to continue serving the children of Philadelphia in a manner consistent with its religious beliefs; it does not seek to impose those beliefs on anyone else,” Roberts wrote. 

Justice Amy Coney Barrett wrote a concurring opinion joined by Justice Brett Kavanaugh. Justice Stephen Breyer also joined it except for the first paragraph.

Justice Samuel Alito wrote a concurring opinion that Justices Clarence Thomas and Neil Gorsuch joined. Gorsuch also offered a concurring opinion that Thomas and Alito joined. 

Barrett said the arguments made against Smith were more compelling (the statement that Breyer disagreed with). 

“In my view, the textual and structural arguments against Smith are more compelling. As a matter of text and structure, it is difficult to see why the Free Exercise Clause—lone among the First Amendment freedoms—offers nothing more than protection from discrimination,” she wrote. 

“Yet what should replace Smith?” she asked. “I am skeptical about swapping Smith’s categorical antidiscrimination approach for an equally categorical strict scrutiny regime, particularly when this Court’s reso- lution of conflicts between generally applicable laws and other First Amendment rights—like speech and assembly—has been much more nuanced. There would be a number of issues to work through if Smith were overruled.”

Barrett stated that this particular case did not require the court to address those issues. 

“We need not wrestle with these questions in this case, though, because the same standard applies regardless whether Smith stays or goes. A longstanding tenet of our free exercise jurisprudence—one that both pre-dates and survives Smith—is that a law burdening religious exercise must satisfy strict scrutiny if it gives government officials discretion to grant individualized exemptions,” she wrote.

Alito disagreed and stated that the Supreme Court should address Smith

“This case presents an important constitutional question that urgently calls out for review: whether this Court’s governing interpretation of a bedrock constitutional right, the right to the free exercise of religion, is fundamentally wrong and should be corrected,” he said.

“(In Smith) the Court abruptly pushed aside nearly 40 years of precedent and held that the First Amendment’s Free Exercise Clause tolerates any rule that categorically prohibits or commands specified conduct so long as it does not target religious practice. Even if a rule serves no important purpose and has a devastating effect on religious freedom, the Constitution, according to Smith, provides no protection. This severe holding is ripe for reexamination,” Alito added. 

Gorsuch, in his opinion, criticized the majority of his colleagues for their desire to “sidestep the question.”

“On the surface it may seem a nice move, but dig an inch deep and problems emerge. Smith exempts’ neutral’ and ‘generally applicable’ laws from First Amendment scrutiny… The City argues that its challenged rules qualify for that exemption because they require all foster-care agencies—religious and non-religious alike—to recruit and certify same-sex couples interested in serving as foster parents. For its part, the majority assumes (without deciding) that Philadelphia’s rule is indeed ‘neutral’ toward religion,” he wrote. 

Gorsuch criticized how the majority opinion handled Pennsylvania’s nondiscrimination law. 

“The majority then argues that foster agencies fail to qualify as public accommodations because, unlike these listed entities, foster agencies involv[e] a customized and selective assessment.”… But where does that distinction come from? Not the text of the state statute, not state case law, and certainly not from the briefs. The majority just declares it—a new rule of Pennsylvania common law handed down by the United States Supreme Court,” he wrote. “The majority’s gloss on state law isn’t just novel, it’s probably wrong.”

Gorsuch stated that the opinion raises more questions than it provides answers.

“(It’s) hard not to wonder if the majority is so anxious to say nothing about Smith’s fate that it is willing to say pretty much anything about municipal law and the parties’ briefs. One way or another, the majority seems determined to declare there is no ‘need’ or ‘reason’ to revisit Smith today,” he wrote. 

Gorsuch then provided a warning. 

“As the final arbiter of state law, the Pennsylvania Supreme Court can effectively overrule the majority’s reading of the Commonwealth’s public accommodations law. The City can revise its FPO to make even plainer still that its law does encompass foster services. Or with a flick of a pen, municipal lawyers may rewrite the City’s contract to close the §3.21 loophole,” he wrote.

Gorsuch said while the Supreme Court began to address some of the confusion about Smith, it owed it to the lower courts “to cure the problem that this Court created.” 

“Smith committed a constitutional error. Only we can fix it. Dodging the question today guarantees it will recur tomorrow. These cases will keep coming until the Court musters the fortitude to supply an answer. Respectfully, it should have done so today,” he concluded. 

I agree with Gorsuch. While this is a narrow victory, this decision does not put the question to rest. It is a missed opportunity.

Read the entire ruling and concurrent opinions below:

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