The Supreme Court unanimously ruled on Thursday that Philadelphia’s attempt to force a Catholic group to certify same-sex couples as foster parents violates the free exercise clause of the First Amendment.
“The City’s actions burdened [Catholic Social Service]’s religious exercise by forcing it either to curtail its mission or to certify same-sex couples as foster parents in violation of its religious beliefs,” a summary of the court’s ruling states.
When the high court agreed to hear the case of Fulton v. Philadelphia in February 2020, court-watchers immediately recognized its importance in a case pitting LGBTQ rights against religious liberty in a 6-3 conservative court. The anticipated political fault lines were notably absent on Thursday in a ruling written by Chief Justice John Roberts and rife with concurring opinions—but no dissents.
“Government fails to act neutrally when it proceeds in a manner intolerant of religious beliefs or restricts practices because of their religious nature,” Roberts wrote, citing the Supreme Court’s holding in Masterpiece Cakeshop in 2018.
In Masterpiece Cakeshop, the high court similarly adopted a narrow ruling allowing most of the court’s left-leaning flank to join the majority in a 7-2 decision. That case went to the Supreme Court after the Colorado Civil Rights Commission found that a Colorado shop violated anti-discrimination law by refusing to bake a wedding cake for a same-sex couple.
Instead of ruling on broader issues of anti-discrimination laws, free exercise of religion, and freedom of speech, the Supreme Court’s majority found in that case that the Commission did not apply religious neutrality to the shop.
Some legal analysts saw a similar compromise at play in Fulton, with Justices Stephen Breyer, Sonia Sotomayor, and Elena Kagan joining forces with Roberts, Brett Kavanaugh and Amy Coney Barrett to avert a far broader ruling that would strip LGBTQ rights in favor of a right-leaning interpretation of religious liberty.
The three liberals (Breyer, Kagan and Sotomayor) found allies in Roberts, Kavanaugh and Barrett to keep Employment Division v. Smith from being wiped off the books and to give Catholic social services a very narrow (and perhaps ephemeral) win.
— Steven Mazie (@stevenmazie) June 17, 2021
“The three liberals (Breyer, Kagan and Sotomayor) found allies in Roberts, Kavanaugh and Barrett to keep Employment Division v. Smith from being wiped off the books and to give Catholic social services a very narrow (and perhaps ephemeral) win,” Bard Early College professor and The Economist‘s Supreme Court correspondent Steven Mazie tweeted.
Justices Samuel Alito, Clarence Thomas and Neil Gorsuch made clear in a concurring opinion that they would have preferred a more sweeping ruling that would have stricken Employment Division v. Smith, which upheld a prohibition on sacramental peyote use over religious liberty objections.
Smith established the principle that states are not required to accommodate otherwise illegal actions in the name of religious freedom.
“Even if a rule serves no important purpose and has a devastating effect on religious freedom, the Constitution, according to Smith, provides no protection,” Alito wrote in the concurrence.
Rejecting that view, Justice Barrett wrote in a concurring opinion that she sees “no reason to decide in this case whether Smith should be overruled, much less what should replace it.”
The lead Roberts opinion also spurns the invitation to overrule Smith, ruling in the Catholic group’s favor on other grounds.
“As Philadelphia acknowledges, [Catholic Social Service] has ‘long been a point of light in the City’s foster-care system,”” the lead opinion states. “[Catholic Social Service] 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.’”
Read the ruling below:
[Image of Chief Justice Roberts by Erin Schaff-Pool/Getty Images)
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