Fulton v. City of Philadelphia, a case by a Catholic group opposing foster care with same-sex couples, was widely expected as a resounding victory for religious rights and a correspondingly significant defeat for LGBTQ rights. Instead, the court's opinion evades almost all of the important questions raised by the case.
It's still a small win for religious conservatives and a similarly small loss for the Philadelphia LGBTQ community. However, the court's decision is unlikely to have much impact outside of this city. And there is a lull in the battle to overturn a landmark Supreme Court decision from over three decades ago – most likely because, as Judge Amy Coney Barrett notes in a unanimous statement, multiple judges are unsure what to do next if that decision is overruled.
Fulton includes Philadelphia's foster child placement process. The state is working with more than 20 private groups to find suitable foster parents for these children. Until recently, one of these groups was the Catholic Social Service (CSS).
In 2018, however, the Philadelphia Inquirer revealed that CSS is refusing to refer foster children to same-sex couples. After an investigation, the city decided not to renew its contract with CSS because the organization had violated both a city's non-discrimination ordinance and the terms of the contract itself.
CSS sued, claiming that it had a constitutional right to receive this government mandate and refuse to place children with same-sex couples, as this refusal was rooted in CSS 'religious beliefs. In other words, Fulton raised a similar question that the court largely avoided three years ago in Masterpiece Cakeshop v Colorado Civil Rights Commission (2018) – whether individuals or organizations with religious objections to homosexuality have a constitutional right to discriminate against gay, lesbian people or bisexual people.
The Fulton plaintiffs also moved the Supreme Court to revoke its landmark decision in the Employment Division v. Smith (1990), who stated that religious objectors must obey "neutral laws of general application". According to Smith, a religious objector is usually bound by state or local law as long as it applies to non-religious actors alike. So when secular organizations are prohibited from discriminating, the same rule generally applies to religious organizations.
But none of these important issues were resolved at Fulton. While Judge Samuel Alito drafted a lengthy statement calling for Smith's repeal, only Judges Clarence Thomas and Neil Gorsuch followed suit.
The rest of the court agreed with a much closer majority opinion of Chief Justice John Roberts, who ruled in favor of CSS, but for reasons that are unlikely to have much impact on future cases.
The majority opinion of Roberts is extremely narrow
Philadelphia cited two reasons for terminating its relationship with CSS: CSS had violated both an anti-discrimination ordinance and a provision of the CSS contract with the city.
Roberts eliminates the first of these two grounds by denying that the Anti-Discrimination Regulation even applies to this case. This regulation prohibits “denying or disturbing or otherwise discriminating against a person in public accommodation” on the basis of a variety of characteristics, including “sexual orientation”.
Roberts & # 39; However, Opinion argues that the words "public housing" do not include foster families. "Certification as foster parents. . . is not readily available to the public, "he argues, and it" involves an individual and selective assessment that has little to do with a hotel stay, a meal in a restaurant or a bus ride. "
Notably, this argument is based solely on the text of Philadelphia's special ordinance. Fulton says little about whether the Constitution allows Philadelphia to make another ordinance that explicitly applies anti-discrimination protection to nursing care.
While the Court considers that the Constitution gives CSS some protection against the terms of its treaty with the city, the scope of that protection has as much to do with the wording of that particular treaty as it does with the Court's understanding of the Constitution .
Specifically, the city's care contract stipulates that no one may be rejected as a potential foster parent because of their sexual orientation, “unless the officer (the personnel service) or the commissioner's agent grants an exception”.
Although Smith believed that religious objectors should generally follow the same rules as everyone else, Smith also believed that “if the state has a system of individual exemptions, it must not oppose it, imposing that system without overriding constraints Cases of "religious hardship" reason to expand. "Since the care contract allows a city official to grant exceptions to the prohibition of discrimination, CSS has increased the constitutional protection that it would not have if the contract simply completely prohibited discrimination.
Again, the point is that CSS prevails largely because of the specific wording of a document that is unique to the city of Philadelphia. The Fulton court ruling has nothing to say about a city that simply prohibits discrimination based on sexual orientation with no exceptions.
The narrowness of Fulton is surprising
One reason many Supreme Court observers, including myself, thought the Fulton court would likely give a much broader verdict is that the court has spent the past few months giving very significant victories to the religious right.
Although Smith is technically still right, recent rulings by the court in the Roman Catholic Diocese of Brooklyn v Cuomo (2020) and Tandon v Newsom (2021) drastically undermined the ruling in Smith. In both the Roman Catholic Diocese and Tandon, the court ruled in favor of places of worship requesting exemptions from public health orders to prevent the spread of Covid-19.
Roman Catholic Diocese and Tandon state that a law is not a “neutral law of general application” in the Smith sense if it imposes obligations on religious institutions that secular institutions do not – even if there are very significant differences between them two institutions. In the Roman Catholic diocese, for example, the court stated that a state could not impose capacity limits on a church that it had not imposed on businesses such as "acupuncture facilities, campsites and (and) garages".
Given this significant new cap on the Smith decision, it seemed likely that the Fulton court would restrict it even further – or possibly even override Smith. And yet the judgment remained in his hand.
The most likely explanation for the court's reluctance comes from the consensus of Judge Barrett of Fulton. Although Barrett claims in that statement that "the textual and structural arguments against Smith" are "compelling", she admits that she is not sure "what to replace Smith".
"If Smith were to be overridden, a number of problems would have to be resolved," writes Barrett, including "Should institutions like Catholic Social Services – which is a branch of the Catholic Church – be treated differently from individuals?" And whether "Pre-Smith – Cases in which challenges to garden variety laws against free exercise are rejected, turn out the same ”.
Barrett's opinion was shared entirely by Judge Brett Kavanaugh and in part by Judge Stephen Breyer, so it seems that these three judges could hold Smith's future in their hands. Until at least two of them are sure how to proceed in a post-Smith world, the court appears to be on hold on handling religious freedom cases.
It is unlikely that this queue will last forever. But for now, this means that the main issues raised by Fulton remain unsolved.