SCOTUS Opinion: First Amendment Trumps Same-Sex Discrimination In Foster Care

The city of Philadelphia entered into contracts with various agencies to provide foster care services, including Catholic Social Services (CSS). While other foster care services would refer children to same-sex or unmarried couples, CSS would not because of its religious mission. The city decided that CSS’s position violated the non-discrimination provision in its contract and stopped referring children to them. CSS and affiliated foster parents sued, alleging violation of their First Amendment rights under the Free Exercise and Free Speech Clauses. The district court and the Third Circuit denied relief, holding that the non-discrimination clauses were neutral and generally applicable under Employment Div. Dept. of Human Resources of Oregon v. Smith, 494 U.S. 872 (1990).

The Court, in a unanimous opinion by Chief Justice Roberts, reversed, holding that the city’s policies were not neutral nor generally applicable under Smith, and thus violated the free exercise rights of the petitioners. The majority also determined that the city’s policy did not survive strict scrutiny because it had no reason not to grant CSS an exemption, noting that CSS was not imposing its religious beliefs on anyone. The majority declined to overrule Smith as CSS requested. Justice Barrett, joined by Justices Breyer and Kavanaugh, concurred, questioning overruling Smith, and whether strict scrutiny should be used instead. Justice Alito, joined by Justices Thomas and Gorsuch, made a lengthy concurring argument that Smith should be overruled. Justice Gorsuch, joined by Justices Thomas and Alito, filed a separate concurrence arguing that it was a mistake for the majority to sidestep overruling Smith.

A link to the opinion in Fulton v. Philadelphia is here: