Fulton, et al., v. City of Philadelphia, et al., No. 19-123.  Opinion of the Court by Roberts, C.J., issued June 17, 2021.


The Catholic Church has long been involved in providing services to children in need.  Until recently, Catholic Social Services of Philadelphia, under contract with the city, evaluated potential foster parents and made recommendations to the city for placement.  However, when Catholic Social Services disclosed that it would not certify same-sex couples for placements, Philadelphia determined that it would not enter into another contract with Catholic Social Services unless Catholic Social Services would agree to certify same sex couples for foster care service.

Litigation ensued, notwithstanding that no same sex couple has ever requested or been denied certification by Catholic Social Service.

A federal district court denied  Catholic Social Services request for injunctive relief, finding that the agency was unlikely to prevail on either a Free Exercise or Free Speech claim, as a neutral law of general applicability is not subject to Free Exercise challenges, and Free Speech principles were inapplicable where the social services agency was certifying for a government agency.

The Third Circuit agreed.  The Supreme Court granted certiorari, having in mind whether or not it ought to overrule Employment Division of the Department of Human Services of Oregon v. Smith, 494 U.S. 872 (1990).

Employment Division of the Department of Human Services of Oregon v. Smith (“Smith”), supra, held that neutral laws of general applicability are not subject to Free Exercise challenges.

In this case, the Supreme Court declined to revisit Smtih, deciding instead that because Philadelphia’s contract with Catholic Social Services included the potential for exemption from same-sex services, the possibility of exemption removes the agreement from consideration as would apply to “neutral laws of general applicability”.  

The Supreme Court found it unquestionable that Philadelphia’s refusal to enter into an agreement with Catholic Social Services, and its retroactive rejection of certifications already made, substantially burdened religious exercise by forcing Catholic Social Services to exercise its faith and refrain from providing services to the city, or by abandoning its faith and providing those services.

The Court could find no compelling reason for rejecting Catholic Social Services, particularly as no harm could be envisioned from continuing to accept their services.  If a request for certification of a same-sex couple were presented, that request could be presented instead to another agency that could accept the couple. 

The Court rejected Philadelphia’s arguments that it ought to have more latitude and received more deference in Free Exercise matters when the city acts in a managerial capacity.  The Court found no basis in the law for abandoning constitutional principles on the basis of the City’s role.

Heckling the Umpire.  The Court’s narrow decision in this case precipitated the issuance of three separate concurrences, each reflecting the joining justices’ disappointment in not overruling Smith.  Justice Alito has published a 77-page history of Free Exercise jurisprudence, which includes a scathing assessment of the Court’s opinion, offering that it might as well have been written in disappearing ink.  All Philadelphia needs to do to avert the Court’s decision is remove the exemption language.  This would place petitioners back at the beginning, with another cycle of litigation ahead.

Fulton v. Philadelphia, No. 19-123 (S. Ct.) June 17, 2021  

 






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