SUPREME COURT OF THE UNITED STATES FULTON ET AL. v. CITY OF PHILADELPHIA Argued November 4, 2020—Decided June 17,
2021 ROBERTS, C. J., delivered the opinion
of the Court, in which
BREYER, SOTOMAYOR, KAGAN, KAVANAUGH, and BARRETT, JJ.,
joined. BARRETT, J.,
filed a concurring opinion, in which KAVANAUGH, J.,
joined, and in which
BREYER, J., joined as to all but the first paragraph.
ALITO, J., filed an
opinion concurring in the judgment, in which THOMAS and
GORSUCH, JJ., joined.
GORSUCH, J., filed an opinion concurring in the
judgment, in which THOMAS and
ALITO, JJ., joined. CHIEF JUSTICE
ROBERTS
delivered the opinion of the Court. Catholic Social Services is a foster
care agency in
Philadelphia. The City stopped referring children to CSS
upon discovering that
the agency would not certify same-sex couples to be
foster parents due to its
religious beliefs about marriage. The City will renew
its foster care contract
with CSS only if the agency agrees to certify same-sex
couples. The question presented is whether the
actions of
Philadelphia violate the First Amendment. I The Catholic Church has served the
needy children of Philadelphia
for over two centuries. In 1798, a priest in the City
organized an association
to care for orphans whose parents had died in a yellow
fever epidemic. When
criticism of asylums mounted in the Progressive Era, the
Church established the
Catholic Children’s Bureau to place children in foster
homes. Petitioner CSS
continues that mission today. The Philadelphia foster care system
depends on cooperation
between the City and private foster agencies like CSS.
When children cannot
remain in their homes, the City’s Department of Human
Services assumes custody
of them. The Department enters standard annual contracts
with private foster
agencies to place some of those children with foster
families. The placement process begins with
review of prospective foster
families. Pennsylvania law gives the authority to
certify foster families to
state-licensed foster agencies like CSS. Before
certifying a family, an agency
must conduct a home study during which it considers
statutory criteria
including the family’s “ability to provide care,
nurturing and supervision to
children,” “[e]xisting family relationships,” and
ability “to work in partnership”
with a foster agency. The agency must decide whether to
“approve, disapprove or
provisionally approve the foster family.” When the Department seeks to place a
child with a foster family,
it sends its contracted agencies a request, known as a
referral. The agencies
report whether any of their certified families are
available, and the
Department places the child with what it regards as the
most suitable family.
The agency continues to support the family throughout
the placement. The religious views of CSS inform its
work in this system. CSS
believes that “marriage is a sacred bond between a man
and a woman.” Because
the agency understands the certification of prospective
foster families to be an
endorsement of their relationships, it will not certify
unmarried
couples—regardless of their sexual orientation—or
same-sex married couples. CSS
does not object to certifying gay or lesbian individuals
as single foster
parents or to placing gay and lesbian children. No
same-sex couple has ever
sought certification from CSS. If one did, CSS would
direct the couple to one
of the more than 20 other agencies in the City, all of
which currently certify
same-sex couples. For over 50 years, CSS successfully
contracted with the City
to provide foster care services while holding to these
beliefs. But things
changed in 2018. After receiving a complaint about a
different agency, a
newspaper ran a story in which a spokesman for the
Archdiocese of Philadelphia
stated that CSS would not be able to consider
prospective foster parents in
same-sex marriages. The City Council called for an
investigation, saying that
the City had “laws in place to protect its people from
discrimination that
occurs under the guise of religious freedom.” The
Philadelphia Commission on
Human Relations launched an inquiry. And the
Commissioner of the Department of
Human Services held a meeting with the leadership of
CSS. She remarked that
“things have changed since 100 years ago,” and “it would
be great if we
followed the teachings of Pope Francis, the voice of the
Catholic Church.”
Immediately after the meeting, the Department informed
CSS that it would no
longer refer children to the agency. The City later explained that the
refusal of CSS to certify same-sex
couples violated a non-discrimination provision in its
contract with the City
as well as the non-discrimination requirements of the
citywide Fair Practices
Ordinance. The City stated that it would not enter a
full foster care contract with
CSS in the future unless the agency agreed to certify
same-sex couples. CSS and three foster parents
affiliated with the agency filed
suit against the City, the Department, and the
Commission. The Support Center
for Child Advocates and Philadelphia Family Pride
intervened as defendants. As
relevant here, CSS alleged that the referral freeze
violated the Free Exercise
and Free Speech Clauses of the First Amendment. CSS
sought a temporary
restraining order and preliminary injunction directing
the Department to
continue referring children to CSS without requiring the
agency to certify
same-sex couples. The District Court denied preliminary
relief. It concluded
that the contractual non-discrimination requirement and
the Fair Practices
Ordinance were neutral and generally applicable under
Employment Division,
Department of Human Resources of Oregon v. Smith (1990),
and that the free
exercise claim was therefore unlikely to succeed. The
Court of Appeals for the
Third Circuit affirmed. .
. . We granted certiorari. II A The Free Exercise Clause of the First
Amendment, applicable
to the States under the Fourteenth Amendment, provides
that “Congress shall
make no law . . . prohibiting the free exercise” of
religion. As an initial
matter, it is plain that the City’s actions have
burdened CSS’s religious
exercise by putting it to the choice of curtailing its
mission or approving
relationships inconsistent with its beliefs. The City
disagrees. In its view,
certification reflects only that foster parents satisfy
the statutory criteria,
not that the agency endorses their relationships. But
CSS believes that certification
is tantamount to endorsement. And “religious beliefs
need not be acceptable,
logical, consistent, or comprehensible to others in
order to merit First
Amendment protection.” Our task is to decide whether the
burden the City has placed
on the religious exercise of CSS is constitutionally
permissible. Smith held
that laws incidentally burdening religion are ordinarily
not subject to strict
scrutiny under the Free Exercise Clause so long as they
are neutral and
generally applicable. CSS urges us to overrule Smith,
and the concurrences in
the judgment argue in favor of doing so. But we need not
revisit that decision
here. This case falls outside Smith because the City has
burdened the religious
exercise of CSS through policies that do not meet the
requirement of being
neutral and generally applicable. See Church of Lukumi
Babalu Aye (1993). Government fails to act neutrally
when it proceeds in a manner
intolerant of religious beliefs or restricts practices
because of their
religious nature. CSS points to evidence in the record
that it believes demonstrates
that the City has transgressed this neutrality standard,
but we find it more
straightforward to resolve this case under the rubric of
general applicability. A law is not generally applicable if
it “invite[s]” the
government to consider the particular reasons for a
person’s conduct by
providing “‘a mechanism for individualized exemptions.’”
For example, in
Sherbert v. Verner (1963), a Seventh-day Adventist was
fired because she would
not work on Saturdays. Unable to find a job that would
allow her to keep the
Sabbath as her faith required, she applied for
unemployment benefits. The State
denied her application under a law prohibiting
eligibility to claimants who had
“failed, without good cause . . . to accept available
suitable work. We held
that the denial infringed her free exercise rights and
could be justified only
by a compelling interest. Smith later explained that the
unemployment benefits law in
Sherbert was not generally applicable because the “good
cause” standard
permitted the government to grant exemptions based on
the circumstances
underlying each application. Smith went on to hold that
“where the State has in
place a system of individual exemptions, it may not
refuse to extend that
system to cases of ‘religious hardship’ without
compelling reason.” A law also lacks general
applicability if it prohibits
religious conduct while permitting secular conduct that
undermines the
government’s asserted interests in a similar way. In
Church of Lukumi Babalu
Aye, Inc. v. Hialeah, for instance, the City of Hialeah
adopted several ordinances
prohibiting animal sacrifice, a practice of the Santeria
faith. The City
claimed that the ordinances were necessary in part to
protect public health, which
was “threatened by the disposal of animal carcasses in
open public places.” But
the ordinances did not regulate hunters’ disposal of
their kills or improper
garbage disposal by restaurants, both of which posed a
similar hazard. The
Court concluded that this and other forms of
underinclusiveness meant that the
ordinances were not generally applicable. B The City initially argued that CSS’s
practice violated
section 3.21 of its standard foster care contract. We
conclude, however, that
this provision is not generally applicable as required
by Smith. The current
version of section 3.21 specifies in pertinent part:
“Rejection of Referral.
Provider shall not reject a child or family including,
but not limited to, . .
. prospective foster or adoptive parents, for Services
based upon . . . their .
. . sexual orientation . . . unless an exception is
granted by the Commissioner
or the Commissioner’s designee, in his/her sole
discretion.” This provision requires an agency to
provide “Services,” defined
as “the work to be performed under this Contract,” to
prospective foster
parents regardless of their sexual orientation. Like the
good cause provision
in Sherbert, section 3.21 incorporates a system of
individual exemptions, made
available in this case at the “sole discretion” of the
Commissioner. The City
has made clear that the Commissioner “has no intention
of granting an
exception” to CSS. But the City “may not refuse to
extend that [exemption]
system to cases of ‘religious hardship’ without
compelling reason” . . . . The concurrence objects that no party
raised these arguments
in this Court. But CSS, supported by the United States,
contended that the
City’s “made-for-CSS Section 3.21 permits discretionary
‘exception[s]’ from the
requirement ‘not [to] reject a child or family’ based
upon ‘their . . . sexual
orientation,’” which “alone triggers strict scrutiny” .
. . . III The contractual non-discrimination
requirement imposes a
burden on CSS’s religious exercise and does not qualify
as generally
applicable. The concurrence protests that the “Court
granted certiorari to
decide whether to overrule [Smith],” and chides the
Court for seeking to
“sidestep the question.” But the Court also granted
review to decide whether
Philadelphia’s actions were permissible under our
precedents. CSS has demonstrated that the City’s
actions are subject to
“the most rigorous of scrutiny” under those precedents.
Because the City’s
actions are therefore examined under the strictest
scrutiny regardless of
Smith, we have no occasion to reconsider that decision
here. A government policy can survive
strict scrutiny only if it advances
“interests of the highest order” and is narrowly
tailored to achieve those
interests. Put another way, so long as the government
can achieve its interests
in a manner that does not burden religion, it must do
so. The City asserts that its
non-discrimination policies serve
three compelling interests: maximizing the number of
foster parents, protecting
the City from liability, and ensuring equal treatment of
prospective foster
parents and foster children. The City states these
objectives at a high level
of generality, but the First Amendment demands a more
precise analysis. Rather
than rely on “broadly formulated interests,” courts must
“scrutinize[] the
asserted harm of granting specific exemptions to
particular religious
claimants.” The question, then, is not whether the City
has a compelling
interest in enforcing its non-discrimination policies
generally, but whether it
has such an interest in denying an exception to CSS. Once properly narrowed, the City’s
asserted interests are insufficient.
Maximizing the number of foster families and minimizing
liability are important
goals, but the City fails to show that granting CSS an
exception will put those
goals at risk. If anything, including CSS in the program
seems likely to
increase, not reduce, the number of available foster
parents. As for liability,
the City offers only speculation that it might be sued
over CSS’s certification
practices. Such speculation is insufficient to
satisfy strict scrutiny,
particularly because the authority to certify foster
families is delegated to
agencies by the State, not the City. That leaves the
interest of the City in
the equal treatment of prospective foster parents and
foster children. We do
not doubt that this interest is a weighty one, for
“[o]ur society has come to
the recognition that gay persons and gay couples cannot
be treated as social
outcasts or as inferior in dignity and worth.” On the
facts of this case,
however, this interest cannot justify denying CSS an
exception for its
religious exercise. The creation of a system of
exceptions under the contract
undermines the City’s contention that its
nondiscrimination policies can brook
no departures. The City offers no compelling reason why
it has a particular
interest in denying an exception to CSS while making
them available to others. * * * As Philadelphia acknowledges, 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. JUSTICE BARRETT,
with
whom JUSTICE KAVANAUGH joins, and with whom JUSTICE
BREYER joins as to all but the
first paragraph, concurring. In
Employment Div.,
Dept. of Human Resources of Ore. v. Smith (1990), this
Court held that a
neutral and generally applicable law typically does not
violate the Free
Exercise Clause—no matter how severely that law burdens
religious exercise.
Petitioners, their amici, scholars, and Justices of this
Court have made
serious arguments that Smith ought to be overruled.
While history looms large
in this debate, I find the historical record more silent
than supportive on the
question whether the founding generation understood the
First Amendment to
require religious exemptions from generally applicable
laws in at least some circumstances.
In my view, the textual and structural arguments against
Smith are more
compelling. As a matter of text and structure, it
is difficult to see
why the Free Exercise Clause—lone among the First
Amendment freedoms—offers
nothing more than protection from discrimination. Yet what should replace Smith? The
prevailing assumption
seems to be that strict scrutiny would apply whenever a
neutral and generally
applicable law burdens religious exercise. But I am
skeptical about swapping
Smith’s categorical antidiscrimination approach for an
equally categorical
strict scrutiny regime, particularly when this Court’s
resolution of conflicts
between generally applicable laws and other First
Amendment rights—like speech
and assembly—has been much more nuanced. There would be
a number of issues to
work through if Smith were overruled. To name a few: Should entities like
Catholic Social
Services—which is an arm of the Catholic Church—be
treated differently than
individuals? Should there be a distinction between
indirect and direct burdens
on religious exercise?
And if the answer
is strict scrutiny, would pre-Smith cases rejecting free
exercise challenges to
garden-variety laws come out the same way? We need not wrestle with these
questions in this case, though,
because the same standard applies regardless whether
Smith stays or goes. A
longstanding tenet of our free exercise
jurisprudence—one that both pre-dates
and survives Smith—is that a law burdening religious
exercise must satisfy
strict scrutiny if it gives government officials
discretion to grant
individualized exemptions. . . . JUSTICE ALITO,
with
whom JUSTICE THOMAS and JUSTICE GORSUCH join,
concurring in the judgment. This case presents an important
constitutional question that
urgently calls out for review: whether this Court’s
governing interpretation of
a bedrock constitutional right, the right to the free
exercise of religion, is
fundamentally wrong and should be corrected. In
Employment Div.,
Dept. of Human Resources of Ore. v.Smith (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. I There is no question that Smith’s
interpretation can have startling
consequences. Here are a few examples. Suppose that the
Volstead Act, which
implemented the Prohibition Amendment, had not contained
an exception for
sacramental wine. The Act would have been consistent
with Smith even though it
would have prevented the celebration of a Catholic Mass
anywhere in the United
States. Or suppose that a State, following the example
of several European
countries, made it unlawful to slaughter an animal that
had not first been rendered
unconscious. That law would be fine under Smith even
though it would outlaw
kosher and halal slaughter. Or suppose that a
jurisdiction in this country, following
the recommendations of medical associations in Europe,
banned the circumcision
of infants. A San Francisco ballot initiative in 2010
proposed just that. A
categorical ban would be allowed by Smith even though it
would prohibit an
ancient and important Jewish and Muslim practice. Or
suppose that this Court or
some other court enforced a rigid rule prohibiting
attorneys from wearing any
form of head covering in court. The rule would satisfy
Smith even though it
would prevent Orthodox Jewish men, Sikh men, and many
Muslim women from
appearing. Many other examples could be added. We may hope that legislators and
others with rulemaking authority
will not go as far as Smith allows, but the present case
shows that the dangers
posed by Smith are not hypothetical.. . . We should reconsider Smith without
further delay. The correct
interpretation of the Free Exercise Clause is a question
of great importance,
and Smith’s interpretation is hard to defend. It can’t
be squared with the
ordinary meaning of the text of the Free Exercise Clause
or with the prevalent understanding
of the scope of the free-exercise right at the time of
the First Amendment’s
adoption. It swept aside decades of established
precedent, and it has not aged
well. Its interpretation has been undermined by
subsequent scholarship on the
original meaning of the Free Exercise Clause. Contrary to what many initially
expected, Smith has not provided
a clear-cut rule that is easy to apply, and experience
has disproved the Smith
majority’s fear that retention of the Court’s prior
free-exercise jurisprudence
would lead to “anarchy.” When Smith reinterpreted the Free
Exercise Clause, four Justices—Brennan,
Marshall, Blackmun, and O’Connor—registered strong
disagreement. After joining
the Court, Justice Souter called for Smith to be
reexamined. So have five
sitting Justices. So have some of the country’s most
distinguished scholars of
the Religion Clauses. On two separate occasions,
Congress, with virtual
unanimity, expressed the view that Smith’s
interpretation is contrary to our
society’s deep-rooted commitment to religious liberty.
In enacting the
Religious Freedom Restoration Act of 1993, and the
Religious Land Use and
Institutionalized Persons Act of 2000, Congress tried to
restore the
constitutional rule in place before Smith was handed
down. Those laws, however,
do not apply to most state action, and they leave huge
gaps. It is high time for us to take a
fresh look at what the Free
Exercise Clause demands. . . . II Smith was wrongly decided. 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. . . . VI If Smith is overruled, what legal
standard should be applied
in this case? The answer that comes most readily to mind
is the standard that
Smith replaced: A law that imposes a substantial burden
on religious exercise
can be sustained only if it is narrowly tailored to
serve a compelling government
interest. Whether this test should be rephrased
or supplemented with
specific rules is a question that need not be resolved
here because
Philadelphia’s ouster of CSS from foster care work
simply does not further any
interest that can properly be protected in this case. As
noted, CSS’s policy
has not hindered any same-sex couples from becoming
foster parents, and there
is no threat that it will do so in the future. . . . |