Catholic Social Services has been providing adoption and foster care services in Philadelphia for many years. However, the city arbitrarily denied them the right to continue placing children in homes because they affirm that marriage is between one man and one woman, and declined to work with same-sex couples.
After a protracted lawsuit, Fulton v. City of Philadelphia, the Supreme Court today ruled unanimously in favor of Catholic Social Services and their right to serve the children of Philadelphia. Chief Justice John Roberts wrote the majority opinion, with concurring opinions from other justices. Chief Justice Roberts wrote
CSS [Catholic Social Services] 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.
Although the Court could have used the opportunity to change the trajectory of its religious freedom jurisprudence (as several Justices urged it to in concurring opinions), Fulton is a victory. It is a step in the right direction for religious freedom in the United States, with a unanimous opinion making clear that the everyone should be able to live out their faith without fear of government intrusion or discrimination.
In a lengthy opinion concurring with the Court’s judgment, however, Justice Alito, joined by Justices Gorsuch and Thomas, urged the Court to go further.
In Employment Div., Dept. of Human Resources of Ore. v. Smith, 494 U. S. 872 (1990), the Court abruptly pushed aside nearly 40 years of precedent and held that the First Amendment’s Free Exercise Clause tolerates any rule that categorically prohibits or commands specified conduct so long as it does not target religious practice. Even if a rule serves no important purpose and has a devastating effect on religious freedom, the Constitution, according to Smith, provides no protection. This severe holding is ripe for reexamination.
Three justices on the Supreme Court, at least, have made it clear that the precedent in Smith should be revisited, allowing for stronger protections of religious freedom. Smith loosens the protections of the First Amendment, and people of faith deserve better. Justice Alito’s opinion is an encouraging sign that a substantial faction on the court is interested in going further to protect religious freedom. That is reason to be hopeful for the future.
