Supreme Court’s Unanimous ‘Fulton’ Ruling Vindicates Religious Freedom

COMMENTARY: The decision is also powerful evidence that the Supreme Court, as it is currently constituted, doesn’t play politics.

‘The justices understand that foster parents like me share in the common, noble task of providing children with loving homes,’ said Toni Simms-Busch, a foster mom and named plaintiff in the case, according to a Becket press release after the June 17 verdict.
‘The justices understand that foster parents like me share in the common, noble task of providing children with loving homes,’ said Toni Simms-Busch, a foster mom and named plaintiff in the case, according to a Becket press release after the June 17 verdict. (photo: Courtesy of Becket)

In a unanimous judgment issued Thursday morning, the U.S. Supreme Court ruled that Philadelphia’s refusal to renew its contract with the Archdiocese of Philadelphia’s foster-care placement agency unless it agreed to certify same-sex couples as foster parents violates the free-exercise guarantee found in the First Amendment. Fulton v. Philadelphia is an important victory for religious freedom. It’s a particularly big win for Catholics unwilling to betray Church teaching as a precondition to serve the needy.     

For more than two centuries, the Catholic Church in Philadelphia has cared for orphaned and abandoned children in need of safe and loving homes. And for more than 50 years, Catholic Social Services — a ministry of the archdiocese — has partnered with the city to find stable and loving foster homes. It was an incredibly fruitful relationship — until three years ago. 

In March 2018, a local newspaper questioned whether faith-based placement agencies were willing to work with same-sex couples. City officials reacted. They interrogated the heads of the two faith-based agencies working with the city. The head of Catholic Social Services (CSS) explained that, consistent with Church teaching on marriage, the agency was unable to do so. It came up with a solution: It would refer any same-sex couple who approached the agency to another private agency partnering with the city. 

Such a commonsense solution to a potential conflict (I say “potential” because no same-sex couple had ever come to the agency) should have been the end of the story. CSS’ proposed referral policy accommodates its religious beliefs and serves the city’s interest in recruiting more residents to the noble work of foster parenting. 

But the city officials were not interested in solutions. They wanted ideological conformity. So the city cut ties with the CSS. Committed to its ministry, CSS — along with two longtime foster mothers — went to court. 

I filed an amicus brief with the Supreme Court on behalf of former foster children and foster and adoptive parents served by Catholic-run agencies. Their stories deeply touch the heart. 

Amicus Wayne Thomas says that his siblings not placed in CSS-certified foster homes had very different childhoods from his. Life at the home of Sharonell Fulton, one of the plaintiffs and his foster mother, was different.

“Everything I went through that involved the agency gave me so much hope,” he says. “All the workers we had that helped us were great. They bring a positive respect to upcoming foster children that need their help.” 

Amicus Thomas Paul was fostered and later adopted by Cecilia Paul. Mrs. Paul fostered more than 100 children with CSS before her death. 

“I want other kids to have the opportunity that I did,” Paul says. “If they get shattered by situations that are not their fault, they should still have the chance to dream.” 

Wayne and Thomas came forward not out of animus for same-sex couples interested in fostering, but in defense of an agency that helped give them a new life.

It’s curious that the American Civil Liberties Union, an organization founded to protect Americans’ First Amendment rights from government overreach, represented intervenors in the case who supported the city. Let me repeat that: The ACLU sided with the government. The group’s formerly robust defense of religious liberty and free speech now plays second fiddle to its quest for absolute acceptance of same-sex “marriage.” 

Fortunately, the Supreme Court — as it is currently constituted — remained true to its responsibility to faithfully interpret the Constitution. Elizabeth Kirk, research associate and lecturer at The Catholic University of America’s Columbus School of Law, offered insightful commentary for the Register in reaction to the Court’s decision. 

“The chief importance of Fulton,” noted Kirk, “is its unanimity.” At a time of great division and divisiveness in Washington, it is refreshing that a case dealing with the needs of children who have suffered abuse and neglect can inspire consensus.

The Court’s opinion was written by Chief Justice Roberts. He traced the long-standing tradition of the Catholic Church in serving underprivileged children in the U.S., as well as the Supreme Court’s prior cases dealing with government burdens on the free exercise of religion. He explained a decision by the Court handed down in 1990, Employment Division v. Smith. The Court in Smith ruled that the First Amendment is not violated by “neutral and generally applicable” laws with an incidental burden on religion. 

The lower courts held that Smith permits Philadelphia to halt its partnership with CSS. Roberts disagreed. Since the city has a “system of individual exemptions” available at the “sole discretion” of the city’s commissioner of the Department of Health and Human Services, he noted in the majority opinion, its actions are not generally applicable and are thus subject to the “most rigorous of scrutiny.” 

Following this exacting review meant that the Supreme Court must concern itself not with 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.” So narrowed, the city’s asserted interests were “insufficient.”

Justice Samuel Alito, joined by Justices Clarence Thomas and Neil Gorsuch, went a step further than their other colleagues on the bench. The three concurred with the Court’s judgment but also wanted to address Smith

It’s “an important constitutional question that urgently calls out for review,” Alito wrote. Without taking away from the importance of the Court’s vindication of religious freedom in Philadelphia, Justice Alito’s 77-page-long concurring opinion is an important map for future cases. Justice Amy Coney Barrett along with Justice Brett Kavanaugh indicated in another concurring opinion that they similarly are open to reassessing Smith in future cases squarely governed by it. And these cases will come.

Alito recently made a similar contribution to the Court’s religious-freedom jurisprudence. In its 2011 Hosanna-Tabor v. EEOC decision, the Court unanimously ruled that federal discrimination laws do not apply to religious organizations’ selection of religious leaders. 

Alito wrote a concurring opinion emphasizing that courts should “focus on the function performed by persons who work for religious bodies” when determining ministerial status. Specifically, he wrote that the exception should apply to anyone “who leads a religious organization, conducts worship services or important religious ceremonies or rituals, or serves as a messenger or teacher of its faith.” 

Alito’s analysis would later form the basis of the Court’s decision last summer in Our Lady of Guadalupe School v. Morrissey-Berru, extending the Court’s Hosanna-Tabor decision to teachers of religion at parochial schools. 

Although the Court in Fulton focused on the unique contract used in Philadelphia, the justices’ analyses will certainly help other Catholic foster-care and adoption agencies, as well as other faith-inspired social-service organizations, defend themselves against strong-arm tactics by the government. Fulton is also powerful evidence that the Supreme Court, as it is currently constituted, doesn’t play politics. It vindicated a right specifically guaranteed under the Constitution — the free exercise of religion. The practical effect of its decision is that a trusted and successful agency in Philadelphia can at last return to its mission.

Rebecca Shah (l) and Ambassador Sam Brownback

Ambassador Sam Brownback and Rebecca Shah (Season 4 — Ep. 5)

Our guests on this episode of Religious Freedom Matters are Sam Brownback, a former U.S. senator and Kansas governor who served as the U.S. Ambassador at Large for International Religious Freedom from 2018 to 2021, and Rebecca Shah, principal investigator for the Religion and Economic Empowerment Project (REEP) and a senior fellow at the Archbridge Institute.