Supreme Court Votes 9 – 0 for Religious Freedom, So Why Are Many Disappointed?

| July 21, 2021

Near the end of its term, the United States Supreme Court decided the Freedom of Religion case of Fulton v. City of Philadelphia.  The case concerned the referrals of children for foster care to Catholic Social Services (“CSS”), which has (all agreed) “long been a point of light in the City’s foster-care system.” Nevertheless, the City stopped referring children to CSS because the agency would not certify same-sex couples to be foster parents, due to its religious convictions about marriage. The City would not renew the foster care contract with CSS unless the agency agreed to certify same-sex couples. CSS sued to prevent the City from enforcing this condition; and so the question came to the Supreme Court as to whether the actions of Philadelphia violated the First Amendment.


A unanimous Supreme Court decided in favor of CSS, and found that Philadelphia had violated CSS’ First Amendment Right of Freedom of Religion.  On its face, that looks like a clear and decisive victory for an expansive reading of the Free Exercise Clause of the First Amendment.  However, the decision left many advocates of religious liberty disappointed in the Court’s reasoning.   This is because, looming in the background of this case is the Supreme Court 1990 decision on religious freedom of Employment Division v. Smith which has for 30 years been the subject of controversy.


The First Amendment prohibit laws that inhibit “the free exercise” of religion.  During the tenure of Chief Justice John Roberts, the Supreme Court has been dramatically expanding the understanding of what “the exercise of religion” means, so that it now includes far more than doctrine and worship, and includes any action (or any inaction) that is motivated by sincere religious belief.  To restrict or regulate such conduct, the government needs to show both (i) a compelling government, and (ii) that the law in question is the least restrictive means to attaining that interest.  This test is called “strict scrutiny.”

Fulton v. City of Philadelphia concerned a law that (in the language of constitutional jurisprudence) “incidentally burdens religion.”  In other words, the law did not address religious beliefs or practices per se (there was nothing that said CSS had to approve of homosexuality or same sex marriage) but rather concerned conduct that arose from religious beliefs (CSS will not certify same sex couples for foster care).  Since 1990, such laws are reviewed under the precedent of Employment Division v. Smith.


 Smith held that laws incidentally burdening religion did not have to meet the standard of strict scrutiny, but instead were still constitutional “so long as they are neutral and generally applicable.”  The Smith case itself concerned the use of illegal hallucinatory drugs in a worship service, and the Court held that if a law (hallucinatory drugs are illegal) is generally applicable (no one can use such drugs) it is not a violation of the First Amendment even if it impacts religious conduct (the law is valid even if it impacts your religious beliefs and worship).

The City of Philadelphia argued that its policy (you cannot discriminate against same-sex couples) is generally applicable (it applies to all foster care agencies) and CSS cannot avoid the law even if it impacts your religious conduct (you cannot use your religious position that marriage is between a man and a woman to avoid placement with same sex couples).

The Smith decision has long been criticized, and many thought that the Court would overrule it.  Congress and many states have passed “Restoration of Religious Liberty” statutes to blunt its impact.  Now, Fulton v. City of Philadelphia presented just such an opportunity. Instead, the Supreme Court went in a different direction.


Rather than overruling Employment Division v. Smith, the Court found that the Philadelphia regulation was not “generally applicable.”  The majority decision, authored by Chief Justice Roberts, noted that the Philadelphia law allowed the City to grant exemptions to its policy: Provider shall not reject a child or family including, but not limited to, . . . prospective foster or adoptive parents, for Services based upon . . . their . . . sexual orientation . . . unless an exception is granted by the Commissioner or the Commissioner’s designee, in his/her sole discretion.”

That right to an exception, which would be granted only in the “sole discretion” of the Commissioner, meant that the same law was not applicable to everyone.  As such, the Philadelphia laws could not be protected by Employment Division v. Smith.  Every member of the Court agreed that the law failed the “strict scrutiny” test and so was unconstitutional.

Justice Roberts wrote the majority opinion, saying that:

As Philadelphia acknowledges, …  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. The refusal of Philadelphia to contract with CSS for the provision of foster care services unless it agrees to certify same-sex couples as foster parents cannot survive strict scrutiny, and violates the First Amendment.


Three justices were prepared to go much further, and to overrule Employment Division v. Smith entirely.  Justice Samuel Alito wrote a 77 page concurring opinion, joined by Justices Thomas and Gorsuch arguing the Court should not have found a way around Employment Division v. Smith, but overruled it directly, and thereby expanding the free exercise clause to include any law that impacts (even incidentally) any action motivated by sincere religious belief.  Justice Alito argued that the Court’s majority opinion did not go far enough but left “religious liberty in a confused and vulnerable state.”  Justice Gorsuch wrote: “the majority’s circumnavigation of Smith remains only half complete.”

That may be.  However, over the years, Chief Justice Roberts has slowly built a body of law expanding religious liberty, and has done so by taking an incremental approach.  He believes in a slow, careful development of the law.  In past terms, he has authored limited decisions that earned the support of all of the justices, so that opinions came out with the force of a unanimous court, and then built on those decisions as new cases arise.

So there has come from the Supreme Court a 9 – 0 decision upholding the religious liberty of Catholic Social Services to place children consistent with its beliefs, and striking down the bigotry of a government that sought to restrict that liberty.  Enough work for one day.

Category: Law

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Email | Website | Thomas Schetelich is a founding principal in the law firm of Ferguson, Schetelich & Ballew in Baltimore, Maryland, and a member of the United States Supreme Court Bar. He heads both the firm’s corporate/ business law practice and its personal legal services department. He is an AV rated attorney awarded for highest standards of professional skill and ethical practice. Mr. Schetelich devotes much of his practice to assisting charitable and religious organizations, and is the President of The Christian Professional Network. He is a frequent speaker on Biblical and legal matters throughout the United States.