Supreme Court’s LGBTQ Foster Care Decision Offers Little Clarity for Religious Employers

John T. Melcon

In Fulton v. City of Philadelphia, No. 19-123 (June 17, 2021), the Supreme Court unanimously ruled in favor of Catholic Social Services (CSS), holding that the “City of Brotherly Love” unconstitutionally excluded CSS from the City’s foster care licensing scheme based on the agency’s traditional religious beliefs about marriage. Despite the decisive victory for CSS, the decision leaves pressing constitutional questions unresolved, or as Justice Alito observed, the holding is a “wisp of a decision that leaves religious liberty in a confused and vulnerable state.”

Fulton will likely be remembered most for what the Court didn’t do: overrule a three-decade-old case called Employment Division v. Smith. Smith involved the question of whether unemployment benefits could be denied due to an individual’s religious use of peyote and has been used in subsequent decades to, arguably, curtail the First Amendment’s protections for Americans whose religious beliefs and practices are burdened by general laws. Rejecting the invitation to revisit Smith, the Court in Fulton latched onto language in the City’s foster agency contract authorizing discretionary exemptions from the contract’s nondiscrimination clause. The Court explained that when a system exists for individualized exemptions, the government needs a really, really good reason for not extending the system to religious objectors. The City’s proffered reason—that it wanted to promote equal treatment of prospective foster parents—while “weighty,” was too generic to justify the City’s refusal to provide a discretionary exemption to CSS.

It’s doubtful Fulton will have significant ramifications for religious employers. The decision applies to the rare situation where the government permits discretionary secular exemptions but not religious ones. And the majority offered no insight into what happens after Philadelphia’s lawyers predictably delete the exemption language from the contract. Despite the lengthy pleas of several justices, the Court refused to sort out the broader confusion and controversy that exist at the intersection of the First Amendment and nondiscrimination laws, leaving religious employers with no greater guidance on how to navigate these issues unless those employers happen to have a policy that falls within the narrow confines outlined here.