The unanimous ruling was further evidence that claims of religious liberty almost always prevail in the current court.
June 17, 2021
WASHINGTON — The Supreme Court ruled unanimously on Thursday that a Catholic social services agency in Philadelphia could defy city rules and refuse to work with same-sex couples who apply to take in foster children.
The decision, in the latest clash between antidiscrimination principles and claims of conscience, was a setback for gay rights and further evidence that religious groups almost always prevail in the current court.
The court’s surprising consensus on a case that pitted gay rights against religious rights masked deep divisions, with the three most conservative justices issuing caustic concurring opinions criticizing the decision as excessively timid and so narrow as to be meaningless.
Chief Justice John G. Roberts Jr., writing for six members of the court, focused narrowly on the terms of the city’s contract with foster care agencies, which forbids discrimination based on, among other things, sexual orientation. But the contract allows city officials to make exceptions, he wrote, and that doomed the requirement that the Catholic agency must screen same-sex couples.
“The creation of a system of exceptions under the contract undermines the city’s contention that its nondiscrimination policies can brook no departures,” he wrote in the opinion, which was brisk and a little cryptic, suggesting it was the product of extended deliberation and compromise.
The Catholic agency, Chief Justice Roberts wrote, “seeks only an accommodation that will allow it to continue serving the children of Philadelphia in a manner consistent with its religious beliefs; it does not seek to impose those beliefs on anyone else.”
The three most conservative justices cast the decision as a missed opportunity.
“After receiving more than 2,500 pages of briefing and after more than a half-year of postargument cogitation, the court has emitted a wisp of a decision that leaves religious liberty in a confused and vulnerable state,” Justice Samuel A. Alito Jr. wrote, joined by Justices Clarence Thomas and Neil M. Gorsuch. “Those who count on this court to stand up for the First Amendment have every right to be disappointed — as am I.”
The court’s three-member liberal wing — Justices Stephen G. Breyer, Sonia Sotomayor and Elena Kagan — joined the majority opinion, which was a surprise and may have been part of an effort to avoid a broader ruling that might have allowed religious objections to override all sorts of government policies and programs.
The court’s newest members, Justices Brett M. Kavanaugh and Amy Coney Barrett, both appointed by President Donald J. Trump, also joined the majority opinion, writing separately to explain their reluctance to move too fast in addressing the larger constitutional issues.
For his part, Justice Alito wrote that the ruling was so narrow as to be ephemeral.
“This decision might as well be written on the dissolving paper sold in magic shops,” he wrote. “If the city wants to get around today’s decision, it can simply eliminate the never-used exemption power. If it does that, then, voilà, today’s decision will vanish — and the parties will be back where they started.”
Philadelphia stopped placing children with foster families through the agency, Catholic Social Services, after a 2018 article in The Philadelphia Inquirer described its policy against placing children with same-sex couples. The agency and several foster parents sued the city, saying the decision violated their First Amendment rights to religious freedom and free speech.
Lawyers for the city said the case, Fulton v. City of Philadelphia, No. 19-123, was an easy one. When the government hires independent contractors like the Catholic agency, they said, it acts on its own behalf and can include provisions banning discrimination in its contracts.
Lawyers for the agency responded that it merely wanted to continue work that it had been doing for centuries, adding that no gay couple had ever applied to it. If one had, they said, the couple would have been referred to another agency.
A unanimous three-judge panel of the United States Court of Appeals for the Third Circuit, in Philadelphia, ruled against the agency. The city was entitled to require compliance with its nondiscrimination policies, the court said.
Justice Alito’s concurring opinion on Thursday spanned 77 pages, five times the length of Chief Justice Roberts’s majority opinion. It made the case for overruling an important precedent limiting First Amendment protections for religious practices.
The precedent, Employment Division v. Smith in 1990, ruled that general laws that do not single out religion could not be challenged on the ground that they violated the First Amendment’s protection of the free exercise of religion.
“Smith was wrongly decided,” Justice Alito wrote. “As long as it remains on the books, it threatens a fundamental freedom. And while precedent should not lightly be cast aside, the court’s error in Smith should now be corrected.”
In Thursday’s decision, Chief Justice Roberts said the case from Philadelphia did not provide an opportunity to reconsider the Smith decision. “This case falls outside Smith because the city has burdened the religious exercise” of the agency, he wrote, “through policies that do not meet the requirement of being neutral and generally applicable.”
Justice Barrett, in a concurring opinion joined by Justice Kavanaugh and, for the most part, Justice Breyer, wrote that overruling the Smith decision would raise many difficult issues, ones the court did not need to wrestle with in the case from Philadelphia.
“I therefore see no reason to decide in this case whether Smith should be overruled, much less what should replace it,” she wrote.
Diana Cortes, Philadelphia’s city solicitor, expressed dismay at the ruling but said it could have been worse.
“Today’s decision is a difficult and disappointing setback for foster care youth and the foster parents who work so hard to support them,” she said in a statement. “At the same time, the city is gratified that the Supreme Court did not, as the plaintiffs sought, radically change existing constitutional law to adopt a standard that would force court-ordered religious exemptions from civic obligations in every arena.”
The chief justice wrote that the Catholic agency’s actions followed from its belief that marriage is a bond between a man and a woman.
“Because the agency understands the certification of prospective foster families to be an endorsement of their relationships, it will not certify unmarried couples — regardless of their sexual orientation — or same-sex married couples,” he wrote, adding that the agency “does not object to certifying gay or lesbian individuals as single foster parents or to placing gay and lesbian children.”
“Government fails to act neutrally when it proceeds in a manner intolerant of religious beliefs or restricts practices because of their religious nature,” he wrote, citing the court’s 2018 decision in Masterpiece Cakeshop v. Colorado Civil Rights Commission, which ruled for a baker who had refused to create cakes for same-sex wedding on narrow ground. The decision said the baker had been mistreated by members of the state’s civil rights commission who had expressed hostility toward religion.
In his concurrence, Justice Gorsuch wrote that court’s decision in the Colorado case was similar to the one on Thursday. “After being forced to litigate all the way to the Supreme Court, we ruled for” the baker, Jack Phillips, “on narrow grounds similar to those the majority invokes today.”
Litigation over Mr. Phillips’s business practices continue, Justice Gorsuch wrote. “A nine-year odyssey thus barrels on,” he wrote. “No doubt, too, those who cannot afford such endless litigation under Smith’s regime have been and will continue to be forced to forfeit religious freedom that the Constitution protects.”
The foster care agency relied on the Colorado decision, arguing that it, too, had been subjected to hostility based on antireligious prejudice. The city responded that the agency was not entitled to rewrite government contracts to eliminate antidiscrimination clauses.
Last year, Justice Thomas, joined by Justice Alito, appeared to urge the court to reconsider the 2015 decision that established a constitutional right to same-sex marriage, Obergefell v. Hodges, saying it stigmatized people of faith who objected to those unions.
In his majority opinion in the Obergefell decision, Justice Anthony M. Kennedy, who retired in 2018, called for “an open and searching debate” on same-sex marriage, writing that “the First Amendment ensures that religious organizations and persons are given proper protection as they seek to teach the principles that are so fulfilling and so central to their lives and faiths, and to their own deep aspirations to continue the family structure they have long revered.”
On Thursday, Justice Alito returned to that theme, saying that religious dissent about same-sex marriage must be protected.
“Suppressing speech — or religious practice — simply because it expresses an idea that some find hurtful is a zero-sum game,” he wrote. While the Catholic agency’s “ideas about marriage are likely to be objectionable to same-sex couples, lumping those who hold traditional beliefs about marriage together with racial bigots is insulting to those who retain such beliefs.”