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It’s still a small win for religious conservatives and a similarly small loss for the LGBTQ community in Philadelphia. But the Court’s decision is unlikely to have many implications outside of that city. And it hits pause on a fight tofrom over three decades ago — most likely because, as Justice Amy Coney Barrett notes in a concurring opinion, several of the justices aren’t sure what to do next if that decision is overruled.
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Fulton involves Philadelphia’s process for assigning children to foster homes. The state contracts with more than 20 private groups to identify suitable foster parents for these children. Until fairly recently, one of these groups was Catholic Social Services (CSS).
In 2018, however, the Philadelphia Inquirer revealed that CSS refuses to place foster children with same-sex couples. After conducting an investigation, the city decided not to renew its contract with CSS, claiming that the organization violated both a city ordinance banning discrimination and the terms of the contract itself.
CSS sued, claiming that it has ato receive this government contract and to refuse to place children with same-sex couples, because that refusal is rooted in CSS’s religious beliefs. Fulton, in other words, teed up a similar issue to the one that the Court largely avoided three years ago in (2018) — whether individuals or organizations with religious objections to homosexuality have a constitutional right to discriminate against gay, lesbian, or bisexual individuals.
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The plaintiffs in Fulton, moreover, also asked the Supreme Court to overrule its seminal decision in(1990), which held that religious objectors must follow “neutral law[s] of general applicability.” Under Smith, a religious objector typically is bound by a state or local law so long as it applies with equal force to non-religious actors — so, if secular organizations are forbidden from discriminating, the same rule will generally apply to religious organizations.
But neither of these important questions was resolved in Fulton. While Justice Samuel Alito penned a lengthy opinion calling for Smith to be overruled, that opinion was joined by only Justices Clarence Thomas and Neil Gorsuch.
The remainder of the Court joined a much narrower majority opinion by Chief Justice John Roberts, which rules in favor of CSS, but on grounds that are unlikely to have many implications for future cases.
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Roberts’s majority opinion is exceedingly narrow
Philadelphia cited two reasons for ending its relationship with CSS — it claimed that CSS violated both an anti-discrimination ordinance and a provision of CSS’s contract with the city.
Roberts disposes of the first of these two reasons by denying that the anti-discrimination ordinance applies to this case at all. That ordinance forbids “deny[ing] or interfer[ing] with the public accommodations opportunities of an individual or otherwise discriminat[ing]” against that individual because of a variety of characteristics, including “sexual orientation.”
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Yet Roberts’s opinion argues that the words “public accommodations” do not include foster care. “Certification as a foster parent . . . is not readily accessible to the public,” he argues, and it “involves a customized and selective assessment that bears little resemblance to staying in a hotel, eating at a restaurant, or riding a bus.”
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Notably, this argument relies solely on the text of Philadelphia's particular ordinance. Fulton says little about whether the Constitution permits Philadelphia to enact a different ordinance that does apply anti-discrimination protections explicitly to foster care.
Similarly, while the Court does hold that the Constitution gives CSS some protection against the terms of its contract with the city, the scope of that protection has as much to do with the wording of this particular contract as it does with the Court’s understanding of the Constitution.
Specifically, the city’s foster care contract provides that no one may be rejected as a potential foster parent because of their sexual orientation “unless an exception is granted by the Commissioner [of Human Services] or the Commissioner’s designee.”
Though Smith held that religious objectors generally must follow the same rules as everyone else, Smith also held that “where the State has in place a system of individual exemptions, it may not refuse to extend that system to cases of ‘religious hardship’ without compelling reason.” Thus, because the foster care contract permits a city official to grant exceptions to the ban on discrimination, CSS has heightened constitutional protection that it would not have if the contract simply banned discrimination outright.
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The point, once again, is that CSS prevails largely due to the specific wording of a document that only applies in the city of Philadelphia. The Court’s decision in Fulton has nothing to say about a city that simply forbids discrimination on the basis of sexual orientation without providing for exemptions.
The narrowness of Fulton is surprising
One reason many Supreme Court watchers,, thought the Court was likely to hand down a much more sweeping ruling in Fulton is that the Court spend the past several months handing .
Although Smith is technically still good law, the Court’s recent decisions in(2020) and (2021) both . In both Roman Catholic Diocese and Tandon, the Court ruled in favor of places of worship that sought exemptions from public health orders seeking to prevent the spread of Covid-19.
Roman Catholic Diocese and Tandon establish that a law is not a “neutral law of general applicability” for the purposes of Smith if it imposes obligations on religious institutions that it doesn’t apply to secular institutions — even if there are very significant differences between those two institutions. In Roman Catholic Diocese, for example, the Court explained that a state could not impose capacity limits on a church that it did not impose on businesses such as “acupuncture facilities, camp grounds, [and] garages.”
Given this significant new limit on the Smith decision, it seemed likely that the Court would limit it even more — or potentially even overrule Smith — in Fulton. And yet the Court stayed its hand.
The most likely explanation for the Court’s restraint comes from Justice Barrett’s concurring opinion in Fulton. Though Barrett claims in that opinion that “the textual and structural arguments against Smith” are “compelling,” she confesses she is uncertain “what should replace Smith.”
“There would be a number of issues to work through if Smith were overruled,” Barrett writes, including “Should entities like Catholic Social Services—which is an arm of the Catholic Church—be treated differently than individuals?” and whether “pre-Smith cases rejecting free exercise challenges to garden-variety laws come out the same way.”
Barrett’s opinion was joined in full by Justice Brett Kavanaugh, and in part by Justice Stephen Breyer, so it appears that these three justices may hold the future of Smith in their hands. Until at least two of them are certain how to proceed in a post-Smith world, the Court appears to be in a holding pattern regarding how to handle religious liberty cases.
That holding pattern is unlikely to remain in place forever. But, for the time being, it means that the most important questions raised by Fulton remain unresolved.
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