The Supreme Court on Thursday ruled for a Catholic-run foster care agency in a dispute over Philadelphia’s nondiscrimination policy against gay and transgender people.
The court found that Philadelphia had violated the free exercise clause of the First Amendment by refusing to contract with Catholic Social Services in the placement of foster care children. Chief Justice John Roberts delivered the opinion of the court. No justices dissented. A number of justices, including Justices Amy Coney Barrett, Samuel Alito, and Gorsuch, filed concurrences.
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Roberts wrote in his opinion that Philadelphia’s policy, which was adopted after the landmark gay marriage decision Obergefell v. Hodges, violated the First Amendment because it was neither “neutral and generally applicable.” Philadelphia directly targeted Catholic Social Services, he added, pointing out that the agency had never clashed with any couple before the city cut ties with it.
“Government fails to act neutrally when it proceeds in a manner intolerant of religious beliefs or restricts practices because of their religious nature,” Roberts wrote, citing the court’s decision in a case involving Colorado baker Jack Phillips, who has faced years of litigation over his refusal to bake wedding cakes for gay couples.
The case arose in 2018 after the Philadelphia Inquirer published an investigative piece revealing that CSS, which is run by the Archdiocese of Philadelphia, had a policy wherein it would not place children with gay or transgender foster parents. Philadelphia soon cut ties with CSS, which was one of the largest foster care providers in the city.
An appeals court sided with Philadelphia. The Supreme Court heard the case in November, a day after the presidential election. Both sides framed the case as a clash between religious liberty and a philosophy of equality that ascended with Obergefell.
Justice Brett Kavanaugh, during his questions, pointed out that these warring factions seem to be on a collision course in which every case is “sensitive and controversial.” The court’s job, he said, was to find a middle way. Kavanaugh added, however, that in Fulton, it appeared that Philadelphia was “looking for a fight” because prior to the Philadelphia Inquirer’s investigation, the city never received a complaint from a gay or transgender couple.
Although Roberts handed a win to Catholic Social Services, he slapped down a push from fellow conservatives to use the case to overturn Employment Division v. Smith, a landmark 1990 case in which the court found that laws that are generally applicable do not violate the First Amendment. That decision has been increasingly called into question as a number of states pass laws raising conflicts between religious and gay rights interests. Roberts wrote that Smith did not apply here because Philadelphia’s policy was not neutral.
Several justices said they wanted to revisit Smith. In her concurrence, Barrett wrote that she had found “compelling” reasons to overturn Smith. Still, she added, that since the case did not apply here, she joined the court’s opinion in full. Alito also attacked Smith in a 77-page opinion, writing that the case is “ripe for reexamination.”
Alito added that CSS’s victory can be easily undone as long as Smith stands.
“This decision might as well be written on the dissolving paper sold in magic shops,” Alito wrote of Roberts’s opinion.
When the court accepted the case last year, a number of religious freedom attorneys expressed a hope that it help overturn Smith, which has long been seen as an impediment to religious liberty.
Still, even without that victory, the case vindicated the religious liberty cause, said Lori Windham, a senior counsel at the Becket Fund for Religious Liberty, who argued the case before the court.
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“It’s a beautiful day when the highest court in the land protects foster moms and the 200-year-old religious ministry that supports them,” she said.
Philadelphia City Solicitor Diana Cortes took the opposite opinion, saying in a statement to the Washington Examiner that the decision was a “disappointing setback” for the future of foster care in the city. At the same time, however, Cortes said that the city was grateful to the court for not overturning Smith.
