In a unanimous ruling, the court reversed the decision of the United States Court of Appeals for the 3rd Circuit and remanded the case for further proceedings, holding that the City of Philadelphia violated Catholic Social Service's (CSS) right to free exercise under the First Amendment by excluding CSS from the foster care program due to CSS's refusal to certify same-sex couples. Chief Justice John G. Roberts delivered the majority opinion of the court. Justice Amy Coney Barrett filed a concurring opinion. Justices Samuel Alito and Neil Gorsuch filed opinions concurring in the judgment only, of which Justice Clarence Thomas joined.[1]
HIGHLIGHTS
The case: In 2018, the city of Philadelphia's Department of Human Services began an investigation into two of its foster care provider agents for potential violations of the city's anti-discrimination laws. The investigation was based on an allegation that the agencies refused to work with same-sex couples seeking to become foster parents. One of the agencies was a religious nonprofit organization, Catholic Social Services ("CSS"). CSS confirmed that it would not certify same-sex couples as foster parents. The city stopped referring foster children to the agency. CSS filed suit against the city in district court, citing violations of its rights under the First Amendment and under Pennsylvania's Religious Freedom Protection Act. The district court denied the request. CSS appealed to the 3rd Circuit, seeking emergency injunctive relief pending appeal. The circuit court denied the request. Then, CSS filed an emergency application to the Supreme Court for an injunction pending appeal or an immediate grant of certiorari. The Court denied the request. On appeal, the 3rd Circuit affirmed the district court's ruling.
The issue: The case concerned the Free Exercise Clause of the First Amendment.
The questions presented: "(1) Whether free exercise plaintiffs can only succeed by proving a particular type of discrimination claim–namely that the government would allow the same conduct by someone who held different religious views–as two circuits have held, or whether courts must consider other evidence that a law is not neutral and generally applicable, as six circuits have held? "(2) Whether Employment Division v. Smith should be revisited? "(3) Whether a government violates the First Amendment by conditioning a religious agency's ability to participate in the foster care system on taking actions and making statements that directly contradict the agency's religious beliefs?"[2]
The outcome: In a unanimous ruling, the court reversed the decision of the United States Court of Appeals for the 3rd Circuit and remanded the case for further proceedings, holding that the City of Philadelphia violated Catholic Social Service's (CSS) right to free exercise under the First Amendment by excluding CSS from the foster care program due to CSS's refusal to certify same-sex couples.[1]
As of the start of the litigation, the city of Philadelphia's Department of Human Services ("Human Services") had one-year contracts with 30 agencies in its foster care system. One of the agencies was Catholic Social Services (“CSS”), a religious nonprofit organization affiliated with the Archdiocese of Philadelphia. On March 9, 2018, a reporter from the Philadelphia Inquirer contacted Human Services stating that CSS and another agency with active contracts in the city's foster care system would not work with same-sex couples seeking to become foster parents. Human Services considered the claim to be a potential violation of Philadelphia's anti-discrimination laws and began investigating the allegation. The contract between the city and CSS included language prohibiting agencies from discriminating due to race, color, religion, or nation of origin, and it included the city's Fair Practices Ordinance, which in part prohibits sexual orientation discrimination in public accommodations, or in public or private facilities used by the public.[5] The two agencies in question confirmed to Human Services that they would not work with same-sex couples due to their religious views on marriage. Human Services stopped referring foster children to the agencies.[4]
Later in 2018, CSS filed suit in district court, claiming that Philadelphia violated the agency's First Amendment rights and its rights under Pennsylvania's Religious Freedom Protection Act.[6] Three individuals who had worked with CSS as foster parents—Sharonell Fulton, Cecilia Paul, and Toni Lynn Simms-Busch—were also listed as plaintiffs.[4][7] CSS argued that it cannot certify a same-sex married couple as foster parents in keeping with its religious views and as an affiliate of the Catholic Church. State regulations required CSS, acting in its capacity as a foster care provider, to consider an applicant's existing family relationships during the certification process. CSS applied this requirement by only certifying foster parents who were either married or single. CSS would not certify cohabitating unmarried couples and considered all same-sex couples to be unmarried. CSS sought preliminary injunctive relief from the district court to the effect that the city of Philadelphia be required to renew its contractual relationship with CSS while allowing CSS to refuse same-sex couples who applied to be foster parents.[8] The district court denied the request.[4]
CSS appealed the decision to the 3rd Circuit, seeking emergency injunctive relief pending appeal. The 3rd Circuit denied the motion. The plaintiffs, then appellants, filed an emergency application to the Supreme Court of the United States for an injunction pending appeal or an immediate grant of certiorari. Supreme Court Justice Samuel Alito referred the application to the full court. The Supreme Court denied the application.[4]
On appeal, the 3rd Circuit concluded that CSS was not entitled to a preliminary injunction and that Philadelphia's non-discrimination policy was "a neutral, generally applicable law, and the religious views of CSS do not entitle it to an exception from that policy. ... It has failed to make a persuasive showing that the City targeted it for its religious beliefs, or is motivated by ill will against its religion, rather than sincere opposition to discrimination on the basis of sexual orientation."[4] The 3rd Circuit affirmed the Eastern District of Pennsylvania's ruling.[4]
Case law background
Employment Division, Department of Human Resources of Oregon v. Smith
One of the questions presented to the court in Fulton v. City of Philadelphia, Pennsylvania was whether the case Employment Division v. Smith ought to be revisited by the Supreme Court.[9] The following details about the latter case are included to provide background information.[9][10]
HIGHLIGHTS
Petitioner: Employment Division, Department of Human Resources of Oregon
The case: Alfred Smith and Galen Black were counselors working for a private drug rehabilitation organization and members of the Native American Church. The counselors ingested the hallucinogen peyote as part of their religious practice. The rehabilitation organization terminated the counselors' employment for misconduct as a result of their use of peyote. Black and Smith then filed for unemployment compensation. The government denied their requests for benefits on the basis that their employment was terminated due to work-related misconduct. The state appellate court reversed the government's decision, holding that the denial of benefits violated the counselors' First Amendment right to exercise their religion freely. The Oregon Supreme Courtaffirmed the appellate court's judgment. The U.S. Supreme Courtvacated the state supreme court's ruling and remanded the case. On remand, the Oregon Supreme Court held that while state law prohibited the consumption of illegal drugs for sacramental religious uses, this prohibition violated the Free Exercise Clause. The case returned to the U.S. Supreme Court following the state supreme court's ruling.[9][10]
The issue: "Can a state deny unemployment benefits to a worker fired for using illegal drugs for religious purposes?"[9]
The outcome: In a 6-3 vote, the Supreme Court held that the Free Exercise Clause permits the state to prohibit the use of peyote as a sacrament and thus to deny unemployment benefits to persons discharged for such use. Justice Antonin Scalia wrote for the majority in delivering the opinion of the court.[9][10]
Questions presented
The petitioner presented the following questions to the court:[2]
Questions presented:
“
(1) Whether free exercise plaintiffs can only succeed by proving a particular type of discrimination claim-namely that the government would allow the same conduct by someone who held different religious views-as two circuits have held, or whether courts must consider other evidence that a law is not neutral and generally applicable, as six circuits have held?
(2) Whether Employment Division v. Smith should be revisited?
(3) Whether a government violates the First Amendment by conditioning a religious agency's ability to participate in the foster care system on taking actions and making statements that directly contradict the agency's religious beliefs?[11]
In a unanimous ruling, the court reversed the decision of the United States Court of Appeals for the 3rd Circuit and remanded the case for further proceedings, holding that the City of Philadelphia violated Catholic Social Service's (CSS) right to free exercise under the First Amendment by excluding CSS from the foster care program due to CSS's refusal to certify same-sex couples. Chief Justice John G. Roberts delivered the majority opinion of the court. Justice Amy Coney Barrett filed a concurring opinion. Justices Samuel Alito and Neil Gorsuch filed opinions concurring in the judgment only, of which Justice Clarence Thomas joined.[1]
Opinion
In the court's majority opinion, Chief Justice John G. Roberts wrote:[1]
“
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.
...
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.” App. 171. 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.
....
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.” Thomas v. Review Bd. of Ind. Employment Security Div., 450 U. S. 707, 714 (1981). 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. 494 U. S., at 878–882. CSS urges us to overrule Smith, and the concurrences in the judgment argue in favor of doing so, see post, p. 1 (opinion of ALITO, J.); post, p. 1 (opinion of GORSUCH, J.). 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, Inc. v. Hialeah, 508 U. S. 520, 531–532 (1993).
...
As Philadelphia acknowledges, CSS has “long been a point of light in the City’s foster-care system.” Brief for City Respondents 1. 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.
In view of our conclusion that the actions of the City violate the Free Exercise Clause, we need not consider whether they also violate the Free Speech Clause. The judgment of the United States Court of Appeals for the Third Circuit is reversed, and the case is remanded for further proceedings consistent with this opinion.
[11]
In Employment Div., Dept. of Human Resources of Ore. v. Smith, 494 U. S. 872 (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? Cf. Hosanna-Tabor Evangelical Lutheran Church and School v. EEOC, 565 U. S. 171 (2012). Should there be a distinction between indirect and direct burdens on religious exercise? Cf. Braunfeld v. Brown, 366 U. S. 599, 606–607 (1961) (plurality opinion). What forms of scrutiny should apply? Compare Sherbert v. Verner, 374 U. S. 398, 403 (1963) (assessing whether government’s interest is “‘compelling’”), with Gillette v. United States, 401 U. S. 437, 462 (1971) (assessing whether government’s interest is “substantial”). And if the answer is strict scrutiny, would pre-Smith cases rejecting free exercise challenges to garden-variety laws come out the same way? See Smith, 494 U. S., at 888–889.
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. See id., at 884 (law not generally applicable “where the State has in place a system of individual exemptions” (citing Sherbert, 374 U. S., at 401, n. 4)); see also Cantwell v. Connecticut, 310 U. S. 296, 303–307 (1940) (subjecting statute to heightened scrutiny because exemptions lay in discretion of government official). As the Court’s opinion today explains, the government contract at issue provides for individualized exemptions from its nondiscrimination rule, thus triggering strict scrutiny. And all nine Justices agree that the City cannot satisfy strict scrutiny. I therefore see no reason to decide in this case whether Smith should be overruled, much less what should replace it. I join the Court’s opinion in full.
[11]
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, 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.
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. See Pub. L. 66, §3, 41 Stat. 308–309. 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. The city of Philadelphia (City) has issued an ultimatum to an arm of the Catholic Church: Either engage in conduct that the Church views as contrary to the traditional Christian understanding of marriage or abandon a mission that dates back to the earliest days of the Church—providing for the care of orphaned and abandoned children.
...
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.” 494 U. S., at 888.
...
For all these reasons [set out above], I would overrule Smith and reverse the decision below. Philadelphia’s exclusion of CSS from foster care work violates the Free Exercise Clause, and CSS is therefore entitled to an injunction barring Philadelphia from taking such action. After receiving more than 2,500 pages of briefing and after more than a half-year of post-argument cogitation, the Court has emitted a wisp of a decision that leaves religious liberty in a confused and vulnerable state. Those who count on this Court to stand up for the First Amendment have every right to be disappointed—as am I.
[11]
The Court granted certiorari to decide whether to overrule Employment Div., Dept. of Human Resources of Ore. v. Smith, 494 U. S. 872 (1990). As JUSTICE ALITO’s opinion
demonstrates, Smith failed to respect this Court’s precedents, was mistaken as a matter of the Constitution’s original public meaning, and has proven unworkable in practice. A majority of our colleagues, however, seek to sidestep the question. They agree that the City of Philadelphia’s treatment of Catholic Social Services (CSS) violates the Free Exercise Clause. But, they say, there’s no “need” or “reason” to address the error of Smith today. Ante, at 5 (majority opinion); ante, at 2 (BARRETT, J., concurring).
...
It’s not as if we don’t know the right answer. Smith has been criticized since the day it was decided. No fewer than ten Justices—including six sitting Justices—have questioned its fidelity to the Constitution. See ante, at 9–10 (ALITO, J., concurring in judgment); ante, at 1 (BARRETT, J., concurring). The Court granted certiorari in this case to resolve its fate. The parties and amici responded with over 80 thoughtful briefs addressing every angle of the problem. JUSTICE ALITO has offered a comprehensive opinion explaining why Smith should be overruled. And not a single Justice has lifted a pen to defend the decision. So what are we waiting for?
...
What possible benefit does the majority see in its studious indecision about Smith when the costs are so many? The particular appeal before us arises at the intersection of public accommodations laws and the First Amendment; it involves same-sex couples and the Catholic Church. Perhaps our colleagues believe today’s circuitous path will at least steer the Court around the controversial subject matter and avoid “picking a side.” But refusing to give CSS the benefit of what we know to be the correct interpretation of the Constitution is picking a side. Smith committed a constitutional error. Only we can fix it. Dodging the question today guarantees it will recur tomorrow. These cases will keep coming until the Court musters the fortitude to supply an answer. Respectfully, it should have done so today.
[11]
The Supreme Court began hearing cases for the term on October 5, 2020. The court's yearly term begins on the first Monday in October and lasts until the first Monday in October the following year. The court generally releases the majority of its decisions in mid-June.[13]
The court issued 67 opinions during its 2020-2021 term. Two cases were decided in one consolidated opinion. Ten cases were decided without argument. Click here for more information on the court's opinions.
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