Updated 6/17/21 at 3:30pm
The U.S. Supreme Court has handed down its decision in the much-anticipated religious freedom case, Fulton v. Philadelphia, which pitted the right to operate a religious nonprofit in accordance with its deeply held beliefs against a city’s requirement that foster care agencies not discriminate on the basis of sexual orientation.
In a unanimous 9-0 decision, the high court held that Philadelphia violated the First Amendment free exercise rights of Catholic Social Services (CSS), operating as a foster care agency for the city, when it removed CSS as a contractor for refusing to certify same-sex couples as prospective foster parents.
Chief Justice John Roberts wrote the main opinion, which is short – only 15 pages. His concluding paragraph summarizes the court’s decision.
“As Philadelphia acknowledges,” Roberts wrote, “CSS has ‘long been a point of light in the City’s foster-care system.’ […] 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. In view of our conclusion that the actions of the City violate the Free Exercise Clause, we need not consider whether they also violate the Free Speech Clause. The judgment of the United States Court of Appeals for the Third Circuit is reversed, and the case is remanded for further proceedings consistent with this opinion.”
Focus on the Family President Jim Daly issued the following statement following news of the high court’s decision:
“Today Focus on the Family and people of faith everywhere are relieved and hopeful. The tremendous news that all nine justices on the Supreme Court acknowledge the value and historical precedence in allowing faith-based foster care and adoption agencies to continue operating according to their religious principles is welcome in a culture that is increasingly antagonistic toward our deeply held beliefs.
“Churches and religious organizations have been a strong and fruitful source of finding children safe and loving homes, and they now have the freedom to do so without governmental interference. We rejoice with the children who will be served as a result of this decision and pray families will partner with these organizations to serve as a source of hope for those most in need.”
Dr. Sharen Ford is the Director for Foster Care and Adoption at Focus on the Family. She also rejoiced at the news from the Supreme Court, and especially its benefit to children and families.
“There are thousands of faith-affirming providers in the United States celebrating today’s news,” Dr. Ford told The Daily Citizen. “It’s a relief knowing they can continue to operate according to biblical principles and be the safety net vulnerable children rely on. There is already a shortage of foster families ready to serve the hurting children in our nation, so it was difficult for me to imagine what position our country would be in if religious recruiting and licensing agencies were essentially forced to end their work.
“Thankfully after today’s decision I don’t have to worry about that and neither do the children in the child welfare system. Our foster care and adoption team at Focus on the Family and believers across the nation have been praying for this outcome. We thank God for his provision and hope it will be seen as an opportunity for more Christian families to answer the call to foster and adopt knowing the agencies they partner with share their religious convictions.”
There were several concurring opinions in addition to the main opinion written by Chief Justice Roberts. Justice Amy Coney Barrett issued one, joined by Justice Brett Kavanaugh and Justice Stephen Breyer; Justice Samuel Alito issued another, joined by Justice Clarence Thomas and Justice Neil Gorsuch; and Justice Gorsuch issued his own concurrence, joined by Thomas and Alito.
Despite the 9-0 win, there was some division on the conservative side of the court, and ominous warnings that the decision did not go far enough and left the important issue behind this case and many other religious freedom cases for another day.
The Fulton decision can probably be better understood as 6 votes for what Chief Justice Roberts wrote, and 3 votes castigating what Roberts wrote and concurring only in the ultimate result.
Alito, joined by Thomas and Gorsuch, wanted this case to address Employment Div. v. Smith and overrule it. Smith is a 6-3 decision from 1990, written by Justice Scalia, which says that “neutral and generally applicable” laws will be upheld when challenged, even if they negatively impact religious freedom. Unless a law directly targets religion, it is usually upheld under Smith. Public criticism of Smith led to the passage in 1993 of the federal Religious Freedom Restoration Act (RFRA) in an attempt to return to the pre-Smith protections for religious freedom.
Due to the problems created by Smith, the country has witnessed religious freedom under attack from the application of various sexual orientation/gender identity (SOGI) laws at the federal, state and local levels that purport to be “neutral and generally applicable” even while they constrain religious conscience. Just ask Jack Phillips of Masterpiece Cakeshop, who has been battling Colorado’s SOGI law since 2012 and won a Supreme Court victory in 2018, only to recently lose a new legal round brought by a transgender lawyer in Denver.
Before Smith, religious freedom claims would have earned some type of exemption from those types of laws, according to Alito.
The Fulton majority opinion, says Alito, can be undone easily by changes Philadelphia can make in its contract with CSS, placing the agency back into the same legal jeopardy that brought them to the high court in the first place.
“This decision might as well be written on the dissolving paper sold in magic shops,” Alito wrote. “The City has been adamant about pressuring CSS to give in, and if the City wants to get around today’s decision, it can simply eliminate the never-used exemption power. If it does that, then, voilà, today’s decision will vanish—and the parties will be back where they started.”
It gets worse, the justice argued.
“Not only is the Court’s decision unlikely to resolve the present dispute, it provides no guidance regarding similar controversies in other jurisdictions. From 2006 to 2011, Catholic Charities in Boston, San Francisco, Washington, D. C., and Illinois ceased providing adoption or foster care services after the city or state government insisted that they serve same-sex couples. Although the precise legal grounds for these actions are not always clear, it appears that they were based on laws or regulations generally prohibiting discrimination on the basis of sexual orientation. And some jurisdictions have adopted anti-discrimination rules that expressly target adoption services.
“Today’s decision will be of no help in other cases involving the exclusion of faith-based foster care and adoption agencies unless by some chance the relevant laws contain the same glitch as the Philadelphia contractual provision on which the majority’s decision hangs. The decision will be even less significant in all the other important religious liberty cases that are bubbling up.”
The solution, according to Alito, Thomas and Gorsuch, is to overrule Smith and return the court’s religious freedom jurisprudence to the way it was for decades prior to Smith.
“Smith was wrongly decided,” Alito stated. “As long as it remains on the books, it threatens a fundamental freedom. And while precedent should not lightly be cast aside, the Court’s error in Smith should now be corrected.”
Alito then addressed one of the common arguments in support of SOGI laws; avoiding hurt feelings. But he rejected the typical comparisons that LGBT advocates use against religious folk.
“Suppressing speech—or religious practice—simply because it expresses an idea that some find hurtful is a zero-sum game. While CSS’s ideas about marriage are likely to be objectionable to same-sex couples, lumping those who hold traditional beliefs about marriage together with racial bigots is insulting to those who retain such beliefs.
“For all these reasons, I would overrule Smith and reverse the decision below. Philadelphia’s exclusion of CSS from foster care work violates the Free Exercise Clause, and CSS is therefore entitled to an injunction barring Philadelphia from taking such action. After receiving more than 2,500 pages of briefing and after more than a half-year of post-argument cogitation, the Court has emitted a wisp of a decision that leaves religious liberty in a confused and vulnerable state. Those who count on this Court to stand up for the First Amendment have every right to be disappointed—as am I.”
Justice Gorsuch, while joining Alito’s concurrence, emphasized Alito’s point again in a separate concurrence.
“Dodging the question guarantees it will recur tomorrow,” Gorsuch wrote. “These cases will keep coming until the Court musters the fortitude to supply an answer. Respectfully, it should have done so today.”
So, the decision today is a mixture of good and bad news. Or perhaps we can call it a great – but limited – victory for religious freedom. At any rate, Christians can both take heart from this decision as well as pray for the all-encompassing protection of religious freedom that justices Alito, Thomas and Gorsuch have advocated for.
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