In Supreme Court 9-0 ‘Fulton’ Ruling Fissures Lurk Beneath the Surface

NEWS ANALYSIS: Legal experts think the bigger decision will come in overturning 1990’s ‘Employment Division v. Smith.’

A young girl looks out as her foster mother, Sharonell Fulton, watches her from a distance in Philadelphia, Pa.
A young girl looks out as her foster mother, Sharonell Fulton, watches her from a distance in Philadelphia, Pa. (photo: Courtesy photo / Becket)

WASHINGTON — When the U.S. Supreme Court issued its June 17 ruling in Fulton v. Philadelphia, a closely watched free-exercise case that pitted the city of Philadelphia against a Catholic foster-care contractor who refused to make placements with same-sex couples, the 9-0 ruling in favor of the foster parents of Catholic Social Services of the Archdiocese of Philadelphia electrified religious-freedom advocates.

“This is a huge victory for heroic foster moms and for #religiousfreedom. It ensures that religious groups like Catholic Social Services ... can continue their great work,” tweeted Becket, the public interest group that represented the Catholic agency. 

But as news outlets deconstructed the unanimous decision, disturbing fissures surfaced.

Most prominently, Justices Samuel Alito and Neil Gorsuch registered their frustration with a majority opinion that they dismissed as overly narrow, with little to offer beleaguered church agencies facing similar pushback on “LGBTQ” issues. 

Douglas Laycock, a professor at the University of Virginia School of Law and a leading expert on religious freedom, went to the heart of the two justices’ objections.

“A principal worry about this case from the beginning has been the risk that Philadelphia would simply rewrite its rules or contracts and create a generally applicable ban on refusing same-sex couples, with no exceptions,” Laycock told the Register. “That option is clearly open to the city. The case would resume and head right back towards the Supreme Court.” 

Disturbed by the Fulton ruling’s failure to clarify when government could burden faith-based services, Alito and Gorsuch contended that the court should have overturned Employment Division v. Smith. That monumental 5-4 decision in 1990 hemmed in free-exercise rights, ruling that general laws that applied to all and did not treat religion differently could not be ruled as an unconstitutional violation of the First Amendment.  

“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,” wrote Justice Alito in his 77-page concurrence. “Those who count on this court to stand up for the First Amendment have every right to be disappointed — as am I.” 

Gorsuch also weighed in.

“Perhaps our colleagues believe today’s circuitous path will at least steer the court around the controversial subject matter and avoid ‘picking a side,’” wrote Gorsuch in a separate concurrence joined by Alito and Justice Clarence Thomas. “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.”


Majority Opinion

Fully aware of the objections of the court’s conservative wing, the author of the majority opinion, Chief Justice John Roberts, stated that the failure of city contracts to meet the “general applicability” requirement called for a more limited ruling. There was “no occasion,” he wrote, to use the case as a chance to tackle Smith.

“The creation of a system of exceptions under the contract undermines the city’s contention that its nondiscrimination policies can brook no departures,” Roberts wrote in the opinion signed by Justices Amy Coney Barrett and Bret Kavanaugh, as well as the three members of the court’s liberal wing, Justices Stephen Breyer, Elena Kagan and Sonia Sotomayor.

“Government fails to act neutrally when it proceeds in a manner intolerant of religious beliefs or restricts practices because of their religious nature,” Roberts added, citing the high court’s 2018 7-2 ruling in Masterpiece Cakeshop v. Colorado Civil Rights Commission

In that case, the majority sided with Jack Phillips, a baker who said his faith-based beliefs did not allow him to fulfill an order for a wedding cake celebrating the union of a same-sex couple, and the court found that Colorado’s civil rights commission had expressed open animus toward his faith. 

Barrett echoed Roberts’ judgment in Fulton, in a separate concurrence joined by Kavanaugh that caught court watchers by surprise. While she agreed that Smith was flawed, Barrett noted that all nine justices were agreed that the city of Philadelphia was at fault. Accordingly, there was “no reason to decide in this case whether Smith should be overruled, much less what should replace it.”

Though Barrett was not prepared to go further, conservative activists said they were “encouraged” by her remarks that suggested the court must think through the implications of overturning Smith.

“I was encouraged about the prospect for overturning Smith,” said Carrie Severino, president of the Judicial Crisis Network and a former clerk for Justice Thomas. 

Barrett, she said, “seemed inviting of further scholarship and research on what the best alternatives to Smith were. I am personally confident that in a case without an alternative holding, Barrett and Kavanaugh … will be open to reconsidering it.”


Free-Exercise Case

Smith involved a free-exercise case brought by Oregon employees who had been barred from unemployment benefits after they were fired for using peyote. The substance was used in the religious practices of their Native American church; however, it was illegal under state law. 

In its landmark ruling in the case, the Supreme Court held that “neutral” and “generally applicable” rules, which “incidentally” burden the practice of faith, are permissible under the Constitution. And if the law does not apply to all, then the government must provide a compelling interest to justify the burden on religion. 

It is not yet clear how the city of Philadelphia will respond to the Fulton ruling.

The city’s solicitor, Diana Cortes, called the high court’s decision a setback for foster-care youth and parents. “At the same time,” she said in a statement, “the city is gratified that the Supreme Court did not, as the plaintiffs sought, radically change existing constitutional law to adopt a standard that would force court-ordered religious exemptions from civic obligations in every arena.”

Legal experts are waiting to see if the city will modify its policies to address the court’s specific objections and then again sever its contract with the Catholic foster-care agency. But Laycock, for one, questioned the wisdom of such a step. 

“With five justices saying that Smith was wrongly decided, the city would probably be setting itself up for an even bigger loss and Catholic Social Services for a bigger win,” said Laycock. 

The Fulton decision, asserts Laycock, is a significant win for religious liberty. 

“Teachings about sex and marriage are central to many religions; so are works of service. If religions lose the ability to serve because they act on their central teachings, the harm to free exercise is severe,” stated Laycock in a recent column, co-authored by Thomas Berg, a professor of law and public policy at the University of St. Thomas. 

“If religions lose the ability to serve because they act on their central teachings,” Laycock and Berg stated, “the harm to free exercise is severe. The court prevented that here — and the result was unanimous.”

Dan Balserak, director of religious liberty and assistant general counsel for the U.S. Conference of Catholic Bishops, told the Register there was indeed reason for celebration. Most importantly, Fulton clearly addressed critical questions posed by the court’s 2020 ruling in Bostock v. Clayton County, Georgia, which found that Title VII’s prohibition against sex discrimination in employment applied to workers who were fired because they were transgender or gay.

When Gorsuch wrote the majority opinion in Bostock, he noted that the ruling did not clarify how the new legal protection would intersect with religious-liberty concerns.

“This is the first time the court, in a different statutory context, has offered an answer to that question,” said Balserak.

“There are folks who argued, and continue to argue, that nondiscrimination laws are necessarily always a compelling governmental interest, and the court did not agree. Chief Justice Roberts correctly applied the standard that governmental interest must be compelling as applied to the particular religious objector in the particular case.”

The city of Philadelphia lost the case, he said, because the record showed there “were 20-some other foster-care service providers that were willing to certify same-sex couples, so the government’s interest in forcing Catholic Social Services to do so was not compelling. That is the law.”


The Wager Over Smith

Gerard Bradley, a law professor at the University of Notre Dame who said he was among a relatively small number of religious-liberty scholars who viewed Smith as rightly decided, questioned whether Alito, Gorsuch and Thomas’ “bitterness” was fully justified. 

As he saw it, “there was never any chance that the three liberals — Kagan, Breyer, Sotomayor — would overrule Smith, nor was the chief justice likely to do so.” 

“So it might be that Kavanaugh and Barrett’s refusal to side with Alito and Thomas and Gorsuch not only disappointed those three, but surprised them, as well,” he speculated. “In my judgment, however, Barrett and Kavanaugh acted wisely, and correctly. … They are quite right to be concerned about the question: If Smith is overruled, what legal rules should replace it?”

Still, he agreed with several key points argued by Alito and Gorsuch.

“Gorsuch is right that Fulton could become another Masterpiece Cakeshop, where Jack Phillips won his day at the Supreme Court in a decision rooted in similarly narrow grounds — and has been harassed by Colorado authorities ever since,” said Bradley a week after a Denver district court judge ruled against Phillips in a separate case brought by Autumn Scardina, a customer who was rebuffed after asking Phillips to make a birthday and gender transition cake that was blue on the outside and pink on the inside.

“Here, the refusal to provide the bakery item is inextricably intertwined with the refusal to recognize Ms. Scardina as a woman,” wrote Judge Bruce Jones, who stated his belief that the cake order was not a “setup,” though Scardina requested the cake the same day the Supreme Court agreed to hear the earlier case.

Across the partisan divide, the optics of the unanimous decision stirred considerable debate. Progressive commentators appeared chagrined that the court’s liberal wing had sided against a city that sought to enforce “LGBTQ” protections in its contracts with service providers. 

Adam Liptak, the influential New York Times reporter covering the high court, suggested that the support of Breyer, Sotomayor and Kagan for a narrow decision “may have been part of an effort to avoid a broader ruling, such as overturning Smith, that might have allowed religious objections to override all sorts of government policies and programs.”

The larger message from a court now dominated by a conservative majority, added Liptak, is “that claims of religious liberty almost always prevail in the current court.”

Meanwhile, the opinion page of The Wall Street Journal featured a statement from its conservative-leaning editorial board that channeled Alito’s frustration with the majority opinion penned by Chief Justice Roberts

“He wants to win over liberal justices, and he is reluctant to take the heat from overturning even dubious precedents,” stated the editorial board. “But the cost is less protection for religious belief that is increasingly under siege by the state.”

At the same time, lawyers that provide guidance to faith-based institutions facing threats to their religious mission are mining the Fulton opinion to fortify their legal arsenal. And Joshua Holdenried, vice president and executive director of the Napa Legal Institute, which provides resources to aid religious nonprofits, said the ruling confirmed the importance of securing, communicating and enforcing institutional policies grounded in faith. 

“While the court did not offer a clarifying principle on the question of whether religious nonprofits are subject to ‘public accommodations’ laws that violate their sincerely held beliefs, the analysis in the decision does show that faith-based leaders must be proactive in securing the religious identity of their organizations,” Holdenried told the Register.

The Catholic agency that provided foster-care placements in Philadelphia “believes marriage is a sacred bond between a man and a woman. If they had a record or policy of making exceptions to this belief, then defending their policies on the basis of their religious identity would have been dubious,” Holdenreid said. “Simply put, their consistency in applying the teachings of the Church reveals that their policies come from a place of sincerity, not discrimination.” 

He added, “Fulton recognized as much, and religious nonprofits writ large should take notice and ensure that their beliefs are consistently applied and practiced.”