Fulton: A Uniform “Fostering” of Religious Liberty?

The U.S. Supreme Court recently issued a unanimous opinion in the matter, Fulton v. Philadelphia that pitted the city of Philadelphia against a Catholic foster care agency over the agency’s position to not certify unmarried and same-sex couples for foster care services as it would not have been in accordance with the teachings of the Catholic Church. The city of Philadelphia then proceeded to discontinue referrals to the agency and demanded that a new foster care contract with the city, include certification of these couples. In a 9-0 decision, the Supreme Court sided with the Catholic foster care agency and ruled that the basis in which the city asserted its position stemmed from a contractual non-discrimination requirement of the Fair Practices Ordinance. The construct of the ordinance as applied to the Catholic adoption agency violated the Free Exercise Clause of the First Amendment.

Roberts Majority Opinion

In his majority opinion as we predicted in December, Chief Justice Roberts declined to contemplate overturning a hotly debated precedent case, Employment Division v. Smith that held neutral laws of general applicability do not violate the Free Exercise Clause. Here, Chief Justice Roberts did not find it necessary to revisit Smith because the ordinance was not a neutral law of general applicability as it contained in the ordinance a clause stating that it was the discretion of the commissioner to allow for exemptions. By allowing for that mechanism, the very nature of the ordinance was then deemed to not be generally applicable because it considered the existence of potential undefined exemptions. The commissioner had declined to incorporate religious interests under the exemption. Roberts found that where such a system of individual exemptions exist, the government may not refuse to extend that system to cases of religious hardship without a compelling reason. Roberts than elaborates that no compelling reason existed and was careful to point out that as applied to the Catholic agency, the city’s actions were unconstitutional. He also highlighted that the Catholic agency never sought to compel its beliefs on other agencies, but rather simply sought to practice the tenants of its own faith while servicing the children of Philadelphia.

While Chief Justice Roberts took a narrow approach to the issue, one could appreciate his contesting of the Philadelphia ordinance on its face and making clear that it was not bound in any form of neutrality or general application. One could argue that the steps the city took by not granting the exemption despite it having the discretion to could have been approached from a place of animus. It challenges the very premise of the facade in some anti-discrimination laws that they are meant to consider the interests of traditional protective classes.

The Catholic church’s position on several hot button issues in society today is not clouded in mystery it is very much understood and sadly often attacked by various factions. Philadelphia was well aware of this yet still chose to burden the free exercise of the agency’s faith centered mission. Furthermore, the facts of this matter did not present any situation where in fact a same-sex couple had sought certification from the Catholic agency. There are many agencies with similar services offered in Philadelphia that these couples have likely approached for foster care services. This matter could be considered as a targeted attack on faith interests and it was reassuring that the decision in favor of the Catholic agency was unanimous.

Alito Concurrence

It should also be noted that with regards to the highly debated topic of the status of the Smith matter, Justice Alito penned a heated and lengthily concurrence that disagreed with the Court’s decision to not take up addressing its status as active precedent. He discussed the history and tradition of the Catholic church in servicing adoption and foster care entities. He then addressed the majority opinion’s reasoning and warns that a broader ruling was required because the city has room to evade the narrow ruling if it revokes the exemption power clause from its ordinance. He focuses on the Smith precedent as incompatible with the Free Exercise Clause and spends a significant amount of time discussing the original understanding of the Free Exercise Clause during the early days of the nation with further examples of Supreme Court case law that call into question the premise of Smith.

Justice Alito would likely vote to overturn Smith and replace the core of that opinion with a form of the prior standard that was present in Sherbert v. Verner that stated when adjudicating the Free Exercise cases the Court must assess whether a law that imposes a substantial burden on the exercise of religion was narrowly tailored to serve a compelling government interest. It can be argued that this provides a higher standard than Smith’s neutral law of general applicability framework when assessing whether a government’s actions burden the free exercise of religion.

He also discussed Wisconsin v. Yoder in which the Court in 1972, pre-dating Smith, found that a state law compelling education to age 16 violated the free exercise rights of Amish parents. The state, while having a strong interest in compulsory education did not show with particularity how it would be adversely affected with granting the Amish parents an exemption for them to follow their teachings and have their children leave school following 8th grade. In the present facts, this reasoning could have been applied if it considered that there is a strong interest in anti-discrimination and placing children in foster homes. Here, however, the religious entity did not compromise this mission and take steps to restrict the care of the foster children in the community. It did not offer a form of certification based on its faith beliefs, but at no point did it discourage certification from other foster home services in the local community that allowed for unwed couples or same-sex couples to proceed in the foster care process. The greater government interest would not have been compromised with a religious exemption. The anti-discrimination principle as related to foster care was sustained and the city would have been unable to show a particularized harm based on a basic exemption to a religious provider.

A Free Exercise of Tension

With the community having access to this care, the religious entity would not have to be concerned with a law burdening its Free Exercise when relying on the Sherbert standard. While this standard would seemingly work under these facts, it does not however, put to rest counter-arguments. If there was a situation where there were no secular foster care agencies in the community and only a Catholic agency, this could prove to be worrisome under the Sherbert standard. Would then the government’s greater interest for foster care prevail over the faith interest? It raises complications.

Smith could then be seen as perhaps a workable remedy. It could be argued that in this situation the community law could not in fact be considered a neutral law of general applicability. If there is a Catholic adoption agency acting as the sole foster care agent in the community, an anti-discrimination law passed which included sexual orientation as a protected class would then in fact clearly indicate animus towards a religious entity and any decision to not grant an exemption would further this understanding. A tension, therefore, does exist within the demonstrated methods of Free Exercise interpretation.


The Supreme Court unanimously ruled in favor of the Catholic foster care agency without overturning Smith in the Fulton matter. Chief Justice Roberts made some strong points in the majority opinion focusing on the narrow application of the facts as presented and core of Philadelphia’s actions. Justice Alito also made strong points with assessing other paths to reform the present Free Exercise jurisprudence when looking on a larger scale in his concurrence. One also appreciates his heavy focus on historical context to inform his perspective. Overall, under these facts, the Chief had good arguments that worked in principle here, but Justice Alito’s willingness to return to Sherbert should not be discredited and may prove a stronger basis with ever increasing litigation against faith entities moving forward in society. The Smith framework may prove outdated with the nature of the Constitutional conflicts on the basis of faith that our nation currently faces today, but time will tell as further Free Exercise lines of cases continue to develop.

Leave a Reply

Fill in your details below or click an icon to log in:

WordPress.com Logo

You are commenting using your WordPress.com account. Log Out /  Change )

Facebook photo

You are commenting using your Facebook account. Log Out /  Change )

Connecting to %s