In recent years, the issue of whether generally applicable laws that treat everyone the same but inadvertently affect someone’s practice of religion are constitutional. In 1990, the Supreme Court ruled in Employment Division v. Smith that if there’s a neutral law that applies to everybody, it can limit religious freedom.

This concept was tested in the case of Fulton v. Philadelphia.  In this case, Catholic Social Services (CSS) refused to allow same-sex couples to participate in their charitable foster care program on religious grounds in violation of the city’s anti-discrimination rule. The resulting scenario brought the interests of same-sex couples and city’s interest in promoting non-discrimination into direct conflict with the religious beliefs of the charity, and the city blocked CSS from participating in the program. 

The Supreme Court has been reluctant to overturn Employment Division v. Smith, and the Court has also tried to find a balance when there is a conflict of rights. The easiest way for the Court to resolve these complex issues is to find a flaw in the rule setup that can be used to blame the wording of the rule as opposed to making a new sweeping rule.

The Court unanimously found the anti-discrimination language in the city’s foster care certification policy allowed for exceptions made by the Commissioner of Human Services. In other words, this was not necessarily a neutral law that would affect everybody the same because the Commissioner could theoretically modify how it was applied. Therefore, if the Commissioner felt like it, the Court’s reasoning suggests, the Commissioner could have allowed the CSS to continue to refuse to allow same-sex couples to participate in its foster care program. In his majority opinion, Chief Justice Roberts used this exception provision to conclude that the policy “do[es] not satisfy the threshold requirement of being neutral and generally applicable.”

Since the neutrality clause in Smith does not apply, the Court reverted to the Sherbert v. Verner, 374 U.S. 398 (1963) analysis. Sherbert involved a Seventh-day Adventist who was fired from her job because she would not work on Saturdays and was then denied unemployment benefits. The Court found that the denial infringed on her free exercise rights and did not meet a “compelling state interest” standard. The Court found that since the state had exceptions for other reasons, it could not refuse to extend an exception to Ms. Sherbert’s religious hardship without a compelling reason. 

That the Court was reluctant to use this case as a vehicle for attacking Smith was made evident in Justice Barrett’s concurring opinion, which says, “There would be a number of issues to work through if Smith were overruled.”

In their separate concurrence, Justice Alito, joined by Justice Thomas and Justice Gorsuch, agreed with the Court’s conclusion concerning CSS but said that the decision “leaves religious liberty in a confused and vulnerable state” because the Court did not squarely overturn or limit the Smith holding.

At this point, the City of Philadelphia might be able to redraft the city rules and remove any discretion for the Commissioner of Human Services to make any exceptions whatsoever. As foster care services are highly complex and require human discretion, the city may decide that changing this rule for the sole purpose of stopping CSS from participating is not in the children’s best interest. However, even if it were changed, a non-exception clause would place the new city rule squarely within the crosshairs of Smith. CSS might be able to come back to the Court and make a direct attack on Smith in the context of whether or not the city of Philadelphia should also demonstrate a compelling state interest in prohibiting organizations that discriminate against same-sex couples from participating. CSS could even argue that the rule change targetted them specifically, which could be grounds for disqualifying the modification. 

Note: Concerning jurisdiction, Smith was at issue in this case because it is not a federal issue. Federal government rules are subject to the Religious Freedom Restoration Act (1993) that supersedes Smith when it applies to actions of the federal government. For example, when there are issues involving religious exemptions to the Affordable Care Act, the Court will jump straight to the compelling interest test (Sherbert) without first considering whether the law is neutrally written and generally applicable (Smith). See also Boerne v. Flores (1995).

The Supreme Court opinion is available here:

Fulton v. City of Philadelphia (6/17/2021)


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