The U.S. Supreme Court recently handed down a unanimous decision in Fulton v. Philadelphia, which dealt with whether a city can refuse to contract with a Christian foster care services agency because the agency refused to work with same-sex couples. The Court ruled that Philadelphia, which relies on contracts with private agencies to operate its foster care system, could not exclude Catholic Social Services (CSS) from its referral program simply because it would not certify same-sex couples as foster parents. In its opinion, the Court rejected the city’s argument that requiring the city to issue referrals to CSS would violate the city’s nondiscrimination policy. Instead, the Court accepted the argument that Philadelphia’s exclusion of CSS would violate the Free Exercise Clause to the First Amendment to the U.S. Constitution.
History of the Case
After the City of Philadelphia declined to enter a contract with CSS to provide foster care services or refer children to the agency if they would not work with same-sex couples, CSS and three foster parents affiliated with CSS filed suit. They claimed that the referral freeze violated the Free Exercise and Free Speech Clauses of the First Amendment.
The U.S. District Court denied preliminary relief to the plaintiffs, finding that the city’s nondiscrimination policy was neutral and generally applicable and thus not subject to religious exemptions. In reaching this conclusion, the court looked to a prior court ruling, entitled Employment Division v. Smith. Under Smith, if a policy is neutral and generally applicable, it is not a basis for a religious exemption. Therefore, based on Smith, the District Court found that CSS was unlikely to succeed on its claim. The U.S. Court of Appeals for the Third Circuit affirmed the District Court’s ruling. The U.S. Supreme Court reversed the lower court decisions and remanded the case for further proceedings consistent with its opinion.
Court Finds City’s Non-Discrimination Policy Not Generally Applicable Under Smith
Chief Justice John Roberts found that the city’s contract for foster care services with private agencies allowed the commissioner of the city’s Department of Human Services the sole discretion to grant exemptions to city policies. The provision presumably was intended to ensure that a child receives a foster care placement in their best interests. The city had never exempted an agency based on the nondiscrimination policy for certifying foster parents. Due to the ability of the commissioner to exercise discretion, the nondiscrimination policy, therefore, was not generally applicable as required by Smith.
Court Applies Strict Scrutiny to City’s Denial of Religious Exemption to CSS
Since the Court found that the rule in Smith was inapplicable to the case, it applied a strict scrutiny standard to the city’s denial of a religious exemption to CSS. In the words of Chief Justice Roberts,
A government policy can survive strict scrutiny only if it advances ‘interests of the highest order’ and is narrowly tailored to achieve those interests. Put another way, so long as the government can achieve its interests in a manner that does not burden religion, it must do so.
The Court ruled that the city’s actions could not survive the strict scrutiny standard. However, this was a purposely narrow decision in which a majority of the Court declined to overrule Smith. Many believe that Smith does not go far enough to protect religious liberties, but as of now, it remains the law.
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