Fulton v. Philadelphia
The Supreme Court ruled unanimously that Philadelphia violated the First Amendment by cutting off a Catholic foster care agency for refusing to certify same-sex couples — because the city's own contract contained a discretionary exception clause it refused to extend on religious grounds.
The decision is narrow: it does not overturn the landmark 1990 Smith ruling on religious freedom, leaving unresolved the broader question of when religious organizations can seek exemptions from anti-discrimination laws that apply to everyone.
“CSS 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 majority explaining why CSS's request for a religious exemption did not threaten harm to others.
How it got here: CSS sued Philadelphia after the city froze foster care referrals; the District Court denied preliminary relief; the Third Circuit affirmed; the Supreme Court granted certiorari.
The Case in Depth
What happened
Catholic Social Services (CSS), a Philadelphia foster care agency with a more than 200-year history, refuses to certify same-sex couples as foster parents because of its religious belief that marriage is a sacred bond between a man and a woman. After a newspaper story publicized that policy in 2018, the city stopped referring foster children to CSS and threatened to cut off its contract unless CSS agreed to certify same-sex couples — even though no same-sex couple had ever sought certification from CSS, and more than 20 other agencies in the city would serve them.
The question before the Court
Did Philadelphia violate the Constitution by refusing to renew a Catholic foster care agency's contract unless it agreed to certify same-sex couples as foster parents?
The Court's answer
Yes — Philadelphia violated the Free Exercise Clause. The city's standard foster care contract contained a clause allowing the Commissioner to grant exceptions to its non-discrimination requirement "in his/her sole discretion." That built-in flexibility meant the non-discrimination rule was not "generally applicable" — a key test from the Court's 1990 Smith decision — which in turn required the policy to survive the strictest constitutional standard.
Under that strict test, the city had to show a compelling interest that could not be served any other way. It failed: its goals of maximizing foster families and limiting liability weren't strong enough to justify refusing CSS an exception, especially since including CSS would likely expand rather than shrink the pool of available foster families. The Court also ruled that the city's broader anti-discrimination ordinance didn't cover CSS's certification work at all, because foster care certification — unlike a hotel or restaurant — is a selective, months-long, individualized process, not a service open to the general public.
Curious how the Court got there? See the step-by-step legal reasoning →
Why it matters
Religious organizations that contract with governments to run social services — foster care, adoption, homeless shelters — can keep arguing for religious accommodations when those contracts include any discretionary exception clauses. Cities and states that want to enforce strict non-discrimination requirements against faith-based contractors may need to revise their contracts to eliminate such clauses, which could restart similar legal battles.
What changes now
The case is sent back to the lower courts for further proceedings consistent with the Court's ruling. Philadelphia must resume referring foster children to CSS without conditioning that on CSS certifying same-sex couples — at least under the contract language examined here. However, the city could revise its contract to remove the discretionary exception clause, potentially restarting the legal dispute. The broader question of whether Smith should be overruled was explicitly left open for a future case.
What this does not decide
The Court explicitly declined to reconsider Employment Division v. Smith, the 1990 ruling that neutral and generally applicable laws do not require religious exemptions. Three justices would have overruled Smith; three others acknowledged its problems but declined to resolve them. The ruling also does not address the Free Speech Clause claim and does not decide cases where a government contract contains no discretionary exception language.
Concurrences and dissents
Concurrence — Justice Barrett
Justice Barrett agrees that the city violated the Free Exercise Clause and joins the majority opinion in full, but writes separately to explain why she does not join the call to overrule Smith today. She acknowledges that the textual and structural arguments against Smith are compelling — it is hard to explain why the Free Exercise Clause, alone among First Amendment rights, offers only anti-discrimination protection — but says the many unresolved questions about what should replace Smith counsel against deciding that issue when the same outcome follows under any standard.
Concurrence — Justice Alito
“This decision might as well be written on the dissolving paper sold in magic shops.”Justice Alito arguing the majority's narrow ruling can easily be undone by the city simply revising its contract.
Justice Alito would overrule Smith entirely, arguing it was wrong the day it was decided and has grown worse since. He details at length that Smith ignored the ordinary meaning of the Free Exercise Clause, swept aside nearly 40 years of precedent without briefing the parties, and has proven unworkable in practice — producing confused lower-court doctrine on hybrid rights, targeting, and comparators. He criticizes the majority's ruling as a 'wisp of a decision' the city can easily circumvent by revising its contract, and urges the Court to correct the error now.
Concurrence — Justice Gorsuch
Justice Gorsuch joins Justice Alito's call to overrule Smith and sharply criticizes the majority for sidestepping the question the Court granted review to decide. He argues the majority's reasoning requires a convoluted series of moves through municipal contract and ordinance law that no party, amicus, or lower court endorsed, and that the narrow holding guarantees years more litigation for CSS and similarly situated religious organizations. He urges the Court to supply the correct answer now rather than postponing it.
How the Court got there
The legal reasoning, step by step
- The threshold question was whether Philadelphia's policy burdened CSS's religious exercise — clearly yes, since CSS was forced to choose between following its religious beliefs about marriage and continuing its decades-long foster care mission. A burden of that kind triggers Free Exercise Clause scrutiny.
- Under Smith (the Court's 1990 decision on religious freedom and the law), neutral and 'generally applicable' laws — ones that treat everyone the same — do not require religious exemptions. But a law is not generally applicable if it creates a mechanism for individualized exemptions, allowing officials to decide case-by-case who gets excused from the requirement.
- Section 3.21 of Philadelphia's standard foster care contract allows the Commissioner to grant exceptions to the non-discrimination requirement 'in his/her sole discretion' — exactly the kind of individualized exemption system that makes a policy not generally applicable under Smith. The fact that the Commissioner had never used this power, and said he wouldn't grant one to CSS, was irrelevant: the mechanism's existence, not its use, is what matters.
- The city's Fair Practices Ordinance — its citywide anti-discrimination law — also did not apply to CSS's certification work. The ordinance covers 'public accommodations,' meaning services made available to the general public, like hotels and restaurants. Foster care certification is different: it is selective, takes three to six months, involves background checks and intensive home studies, and is not simply accessible to anyone who walks in.
- Because the contractual non-discrimination requirement was not generally applicable, it had to survive strict scrutiny — the most demanding constitutional standard, which requires the government to have an interest of the highest order and to burden religion no more than absolutely necessary to achieve that interest.
- The city's three asserted interests — maximizing foster families, avoiding liability, and ensuring equal treatment — could not justify denying CSS an exception. Keeping CSS in the program would likely increase, not decrease, the pool of foster families; the liability argument was speculative; and the existence of discretionary exceptions in the contract itself undercut the city's claim that equal treatment demanded zero exceptions.
Doctrinal impact
Cases affected by this decision
Distinguishes Employment Div., Dept. of Human Resources of Ore. v. Smith (494 U.S. 872)
The Court found this case falls outside Smith because the city's policy was not generally applicable, avoiding the need to overrule it.
Reaffirms Church of Lukumi Babalu Aye, Inc. v. Hialeah (508 U.S. 520)
The Court relied on Lukumi's rule that non-generally-applicable laws must survive the strictest scrutiny.