Everyone was expecting the Supreme Court to use Fulton v. City of Philadelphia, the foster care case, to rethink its approach to religious accommodation. No one was expecting a unanimous decision. But the foster agency won just such a victory today, confirming that today’s Supreme Court, conservatives and liberals alike, takes seriously its defense of religious Free Exercise under the First Amendment.
Chief Justice John Roberts held together a liberal‐to‐moderate 6‑justice bloc on two theories: First, Philadelphia did not have a neutral and generally applicable rule, as required under Employment Division v. Smith, because its administrator was granted sole discretion for exceptions. Second — and this one really arrived out of left field for some of us — the city’s anti‐discrimination ordinance was inapplicable because it applied to public accommodations and Catholic Social Services, as a foster care provider, is not that.
Justices Samuel Alito, Neil Gorsuch, and Clarence Thomas called on the Court to revisit Smith, its current precedent on many applications of the Free Exercise Clause, in a way friendlier to religious believers seeking accommodation.
Justice Amy Coney Barrett, joined by Brett Kavanaugh and mostly by Stephen Breyer, expressed discontent with Smith combined with a lack of confidence in whether the Court has identified a proper replacement. So there may be a working majority on the Court for the proposition that Smith is the wrong standard, but not on what the right one should be.
Pluralism won today, and the city of Philadelphia should now re‐examine its harsh policy of entirely excluding agencies based on religious convictions. (I set down some further thoughts here on policy clashes between LGBT discrimination principles and religious accommodation.) For the future, the Court has signaled that more major religious‐liberty cases lie ahead.
