The majority decision in Fulton v. Philadelphia was authored by Chief Justice John Roberts, who ruled that Catholic Social Services (CSS) was unacceptably burdened by Philadelphia's refusal to contract with it. Philadelphia's actions forced CSS to choose between violating its own religious beliefs by certifying same-sex couples as foster parents or abandon its mission to provide children in need with foster homes. Although the grounds for the court's unanimous ruling were narrow, the implications are broad and indicate a court that is inclined to allow discrimination based on religious beliefs. The Court ruled that Philadelphia can not discriminate against religious foster care agencies based on their fundamental beliefs about marriage and sexuality. "If anything, including CSS in the program seems likely to increase, not reduce, the number of available foster parents", he wrote.
But Douglas Laycock, a law professor at the University of Virginia and a leading scholar in the area of religious liberty, said that, as the ruling pointed out, there are more than 20 foster-care agencies Philadelphia, many catering to LGBTQ couples.
Catholic Social Services sued, but lower courts sided with Philadelphia. It says that its religious beliefs prevent it from providing inspections of same-sex couples or placing children with those couples. Laws that interfere with religious beliefs should be understood as violating guarantees of religious freedom even when those laws are completely neutral and are not specifically aimed at religious practices, Alito argued.
CSS argued that it was unfairly targeted by the city in 2018 simply because of its religious beliefs; it's been working in foster care for almost 200 years in Philly and never been approached by or turned away a same-sex couple.
Since Philadelphia's ordinance has those exemptions it can not invoke Smith since it is not "generally applicable". In that case, the court rejected a claim by Native Americans - based on their religious beliefs - for an exemption from a state law prohibiting use of peyote. "We have never suggested that the government may discriminate against religion when acting in its managerial role", he added. "It ensures that religious groups like Catholic Social Services-who serve kids regardless of their race, religion, sex, or sexual orientation-can continue their great work".
Justice Amy Coney Barrett, a former clerk to Justice Scalia, admitted that the arguments for overturning Smith were "serious" and "compelling", but backed away from calling for Smith's demise. Gorsuch also filed a concurring opinion, joined by Thomas and Alito, and Barrett also filed a concurring opinion, joined by Kavanaugh, and Breyer, in part. This key Court victory should protect Christian adoption and foster care agencies, and perhaps other similarly situated religious organizations. The city cut ties with Catholic Social Services when the agency's policy came to light a few years ago, and the justices called that decision out of line. As such, he wrote, the Court should overrule Smith "without further delay". For over a half-century, the Supreme Court has found stopping discrimination to be more important than protecting a right to discriminate. "On the facts of this case, however, this interest can not justify denying CSS an exception for its religious exercise".
Beginning in 2018, the city of Philadelphia asked that all contractors follow the city's anti-discrimination policies. They said the agency's actions violated the city's anti-discrimination laws. The late conservative Justice Antonin Scalia penned the majority decision which held that because the peyote prohibition was "neutral law of general applicability", and in no way targeted any religious group, OR was under no obligation to accommodate individuals seeking religious exemptions from the statute. This could signal a risky, broader movement on the court to give license to discrimination, based on religious beliefs, especially against gays, lesbians and transgender people. He is the author of a forthcoming book, "Presumed Guilty: How the Supreme Court Empowered the Police and Subverted Civil Rights".
Erwin Chemerinsky is dean of the UC Berkeley School of Law and a contributing writer to Opinion.