In one of the final decisions of its 2020-2021 term, the Supreme Court issued a unanimous ruling in Fulton v. City of Philadelphia in favor of Catholic Social Services, a Catholic foster-care agency under contract with Philadelphia to certify potential foster parents so that children in foster care could be placed with them. The Court ruled that Philadelphia’s nondiscrimination requirement (which provided that any contracting agency must agree to work with and evaluate applicants to be foster parents without regard to their race, religion, sexual orientation, or a range of other protected characteristics) violated constitutional protections for the free exercise of religion for an agency that refused on religious grounds to work with same-sex couples.
While the case was billed as an inflection moment on the continued viability of Employment Division v. Smith (the 1990 Supreme Court decision, authored by Justice Scalia, that defines the legal standard for constitutional free-exercise challenges to generally applicable laws that incidentally burden religion), the Court’s judgment in Fulton turned on the narrower question whether the Philadelphia requirement could be sustained even under the existing Smith standard, which calls for rational-basis review only. The Court ruled that it could not; Philadelphia’s reservation of the right to grant exemptions from its nondiscrimination requirements was held to make that requirement not “generally applicable”—and therefore subjected to strict scrutiny Philadelphia's denial of a religious exemption for Catholic Social Services.
Our distinguished panel discusses several questions arising from the Court’s decision, including the implications of the Court’s reasoning for the range of other government regulations that afford government officials some measure of discretion; what the opinion and concurrences tell us about the future of Smith; and, more broadly, where we are we in the seeming conflict between protection of religious liberty, on the one hand, and safeguarding LGBTQ+ people from discrimination, on the other.