The Uneasy Detente of Fulton v. City of Philadelphia

By Shirley Lin, Co-Editor

On Thursday June 17, 2021, the Supreme Court issued its ruling in Fulton vs. City of Philadelphia, extending a temporary legal detente as religious groups seek to advance counter-rights in response to widespread recognition of the rights of LGBTQIA+ communities.  The City had ceased to contract with a Catholic agency, Catholic Social Services, once CSS acknowledged that it discriminates against same-sex couples when certifying families for foster-care children.  Philadelphia justified the refusal on the non-discrimination provisions in its contracts and its own anti-discrimination law.  CSS challenged this decision as a violation of the Free Exercise Clause of the First Amendment.  

In a unanimous decision the Court agreed with CSS, but on narrow grounds specific to the contract's inclusion of exceptions and the City's denial of an exception to CSS.  Yet the Justices also signaled that the City "discriminate[d] against religion," in a turn reminiscent of Masterpiece Cakeshop.  Put less acerbically, of course, the City declined to contract with an agency that discriminated in violation of civil rights law.  The Court avoided weighing in on this central question, as it declined CSS's invitation to overrule precedent that generally upholds anti-discrimination laws that may conflict with religious practice if the law is generally applicable (Employment Div., Dep't of Hum. Res. of Ore. v. Smith).  Fulton leaves civil rights susceptible to future attack, as its splintered concurrences hint at the fragile compromise of the final opinion.

At least five Justices (Barrett, Kavanaugh, Alito, Thomas, and Gorsuch) would overrule Smith, although two (Justices Barrett and Kavanagh) would reject the categorical approach of applying the precedent that existed before Smith deferential to religion.  Justice Breyer declined to join the portion of Justice Barrett's concurrence that argues that the Free Exercise Clause should not be limited to a negative freedom from discrimination, but concurred in her discussion of the difficulty of replacing Smith.  

Also concerning is that, by upholding the ability of this religious agency to access government contracts to vital social services, Fulton does not prevent future religious entities from discriminating on the basis of race, disability, and other grounds.  It requires no stretch of the imagination to consider a locality where (unlike Philadelphia) religious social service contractors predominate in delivering vital social services.  Fulton leaves the Court in the dubious position of deciding the acceptability of social harm, at a time when it has openly shifted its baseline for neutrality.