June 18, 2021
Fulton v. Philadelphia: A Masterpiece of an Opinion?
Professor of Law, The University of Texas School of Law
Associate Professor of Law and Business at the University of Houston Law Center
Fulton v. Philadelphia could have created a wide-ranging right to discriminate. But it didn’t. LGBTQ people are still protected under antidiscrimination law. Nor did the Court accept the invitation to overturn thirty years of free exercise precedent and grant religious institutions exemption from law. But the opinion licenses discrimination in foster care and portends a revolution soon to come.
Shades of Masterpiece
Three years ago, the Supreme Court decided Masterpiece Cakeshop v. Colorado Civil Rights Commission, a case pitting the Free Exercise Clause against LGBTQ equality. Justice Anthony Kennedy, the architect of the major gay rights cases, was on the Court. There was hope for a clear statement that the First Amendment does not authorize LGBTQ discrimination any more than it does race and sex discrimination. Instead, the Court concluded that remarks by Colorado’s civil rights commissioners signaled unconstitutional animus against the religious baker. And, so, Masterpiece was largely confined to its facts.
Fulton v. Philadelphia initially seems cut from the same cloth. Again, the religious objector prevailed on narrow, fact-specific grounds. This time, the dispute revolved around a contract between the city of Philadelphia and Catholic Social Services (CSS) to certify families for the city’s foster care system. CSS had agreed to the city’s nondiscrimination policy, but then proved unwilling to certify some LGBTQ families based on its religious beliefs. After the city terminated the contract, the agency claimed that it was entitled to an exemption under the Free Exercise Clause of the First Amendment.
The justices unanimously agreed. Chief Justice Roberts wrote: “The refusal of Philadelphia to contract with CSS for the provision of foster care services unless it agrees to certify same-sex couples as foster parents cannot survive strict scrutiny, and violates the First Amendment.“
Ordinarily, courts are supposed to defer to such nondiscrimination requirements if they are “neutral and generally applicable.” But, here, the Court said, there was a formal system of “individualized exemptions”—which the city had never granted—that meant the rule against discrimination was not generally applicable. In what Justice Gorsuch calls “a dizzying series of maneuvers,” the Court read the city’s “sole discretion” to grant an exemption from nondiscrimination in child placement into a different provision prohibiting discrimination when families are certified.
Strict scrutiny then made short work of the contract. The city’s interest in “equal treatment of prospective foster parents and foster children” was “a weighty one,” but not sufficient to require CSS to provide equal treatment.
A Brief Reprieve for Employment Division v. Smith
With this short majority opinion, the Court avoided the big questions at the intersection of religious freedom and LGBTQ equality. Catholic Social Services had asked the Supreme Court to overturn Employment Division v. Smith, a 1990 case authored by Justice Scalia that itself deviated from several decades of free exercise precedent. Under Smith, religious objectors are not entitled to exemptions from neutral and generally applicable laws. Smith has endured sustained criticism from the left and the right.
In Fulton, six justices chose not to revisit Smith. But Justice Barrett, joined by Justice Kavanaugh, issued her first clear statement that she too would vote to overturn Smith.
Smith’s reversal may be imminent and likely would grant religious objectors a powerful weapon against regulation. In his nearly eighty-page Fulton concurrence—joined by Justices Thomas and Gorsuch—Justice Alito is practically chomping at the bit.
But Fulton may not be as narrow as it first appears. As Justice Alito predicts in his concurrence, the same big picture issues will return to the Supreme Court in short order. Until then, Fulton will not, as he claims, simply vanish as if “written on the dissolving paper sold in magic shops.”
Invitation to Discrimination
The immediate effect of Fulton is that religious welfare agencies in Philadelphia can refuse to certify LGBTQ people as foster families. Other agencies that once agreed to stop discriminating may now seek the same exemption.
And Fulton may have ripple effects. For example, the Archdiocese of Galveston-Houston is seeking to enter the foster care business, but only if exempted from antidiscrimination rules. Miracle Hill Ministries is facing lawsuits for turning away families because they were Catholic, Jewish, or gay. The litigants may point to the Department of Health and Human Services’ ability to grant waivers from child welfare funding requirements as proof of individualized exemptions.
To be sure, not all contracts will contain provisions that suggest an individualized exemption process. But some will. And lawyers for large religious contractors will scour federal, state, and city contracts for any hint of individualized processes that would boost their chances at a religious exemption.
More broadly, Fulton appears to question the governmental interest in eradicating discrimination—even in its own programs. Justice Alito's concurrence announces outright that the government has no interest in equal treatment of same-sex couples, so long as there are other nondiscriminatory agencies. Chief Justice Roberts quoted Masterpiece’s observation that “[o]ur society has come to the recognition that gay persons and gay couples cannot be treated as social outcasts or as inferior in dignity and worth.” But when he described the city’s interest, he didn’t use strict scrutiny’s magic word—“compelling”; he admitted only that it was “weighty.”
A Dubious Strategy?
While the outcome in Fulton was not surprising, the lineup was. The three more progressive justices all joined Roberts in his convoluted—and ultimately unsatisfying—opinion. Not one justice dissented.
Micah Schwartzman and Nelson Tebbe have argued that some justices—Justice Kagan chief among them—are engaged in a sustained strategy of offering asymmetric concessions in order to avoid conflict in a way that is ultimately self-defeating. This strategy seems to be on full display in Fulton, even adding Justice Sotomayor into the mix.
Why does it matter? By joining the opinion, the moderate and liberal justices give the mistaken impression that the results reached by the Court—and the reasons given to justify those results—have more support than they actually do. And in doing so, they hand their conservative colleagues a powerful rhetorical weapon. Not only did the Court rule for CSS in Fulton, they will say, it did so unanimously. The obvious suggestion here will be that any disagreement reveals hostility to religion or ideological blind spot.
Here we see shades of Hosanna-Tabor and its aftermath. In 2012, the Supreme Court surprised court-watchers by issuing a unanimous opinion recognizing the right of religious organizations to select their ministers. In the intervening years, the decision grew to strip many employees of workplace protections. But conservative commentators routinely brush aside criticism by pointing to the Court’s unanimity. Expect much the same when it comes to Fulton and its progeny.