Fulton v. Philadelphia
The Supreme Court unanimously ruled that Philadelphia violated the First Amendment by cutting off a Catholic foster care agency's contract because the agency, citing religious beliefs about marriage, would not certify same-sex couples as foster parents.
The decision turned on a narrow technicality in the City's contract rather than a broad rethinking of religious liberty law, leaving unresolved a major debate over whether a landmark 1990 ruling that limits religious exemptions from neutral laws should be overturned.
“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's closing statement explaining why Philadelphia's refusal to grant CSS an exemption failed the strict scrutiny test.
How it got here: A federal district court denied CSS's request to block Philadelphia's referral freeze; the Third Circuit affirmed; CSS and affiliated foster parents asked the Supreme Court to hear the case, and the Court agreed.
The Case in Depth
What happened
Catholic Social Services (CSS) is a Philadelphia foster care agency affiliated with the Catholic Church that has placed children in foster homes for over fifty years. Because of its religious belief that marriage is a sacred bond between a man and a woman, CSS will not certify same-sex married couples or unmarried couples as foster parents — though it refers inquiring same-sex couples to the more than twenty other agencies in the city that will. After a 2018 newspaper story publicized this policy, Philadelphia stopped referring children to CSS and said it would not renew CSS's contract unless the agency agreed to certify same-sex couples.
The question before the Court
Did Philadelphia violate the First Amendment's guarantee of religious freedom by refusing to contract with a Catholic foster care agency unless it agreed to certify same-sex couples as foster parents?
The Court's answer
Yes — Philadelphia violated the First Amendment's Free Exercise Clause. The key was a provision in the City's standard foster care contract that required agencies to serve prospective foster parents without regard to sexual orientation — but then allowed the Commissioner to grant exceptions to that requirement at "sole discretion." That built-in discretionary exemption system made the contract's non-discrimination rule not "generally applicable" under existing Supreme Court precedent, which holds that a system of individualized exemptions triggers the most demanding constitutional scrutiny. Under that strict standard, the City's interests in denying CSS an exemption specifically — as opposed to enforcing its non-discrimination policies generally — did not hold up: granting CSS an exemption was unlikely to reduce the pool of available foster families, the liability risk was speculative, and the City's own exception system undercut its claim that the policy could admit of no departures.
The Court resolved the case on this narrow ground and explicitly declined to reconsider its 1990 decision in Employment Division v. Smith, which generally shields neutral and broadly applicable laws from religious-liberty challenges. It also did not decide whether Philadelphia's actions separately violated CSS's free speech rights.
Curious how the Court got there? See the step-by-step legal reasoning →
Why it matters
Faith-based foster and adoption agencies in other cities that operate under similar government contracts will study whether their own contracts contain comparable discretionary-exemption clauses. The ruling does not settle the deeper conflict between anti-discrimination laws and religious liberty, so agencies, governments, and LGBTQ advocacy groups can expect further litigation as cities and states revise their contracts and ordinances in response.
What changes now
The case is sent back to lower courts for further proceedings consistent with the ruling. Philadelphia may revise its contracts and ordinances — for example, by eliminating the discretionary-exemption clause that the Court flagged — which would likely restart litigation under the still-intact Employment Division v. Smith framework. Multiple Justices signaled that Smith's validity remains an open and urgent question likely to return to the Court.
What this does not decide
The Court explicitly declined to overrule Employment Division v. Smith (1990), which generally allows governments to enforce neutral, broadly applicable laws without granting religious exemptions. The ruling says nothing about what happens if Philadelphia simply removes the discretionary-exemption clause from its contract, and it does not resolve the broader tension between LGBTQ anti-discrimination laws and religious liberty claims nationwide.
Concurrences and dissents
Concurrence — Justice Barrett
Justice Barrett, joined fully by Justice Kavanaugh and as to all but the first paragraph by Justice Breyer, agreed with the outcome but wrote separately to engage the call to overrule Smith. She found the textual and structural arguments against Smith more compelling than the historical record, but expressed skepticism about simply replacing it with categorical strict scrutiny given the unresolved questions that would follow — for instance, whether religious organizations and individuals should be treated differently. Because the contract's discretionary-exemption system triggers strict scrutiny regardless of whether Smith stays or goes, she saw no need to resolve Smith's fate here.
Concurrence — Justice Alito
Justice Alito, joined by Justices Thomas and Gorsuch, argued the Court should have used this case to overrule Smith outright. In a lengthy opinion, he contended that Smith conflicts with the ordinary meaning of the Free Exercise Clause, ignored the founding-era understanding of the right to religious exemptions, swept aside decades of precedent without adequate justification, and has proven unworkable. He would have applied the pre-Smith compelling-interest test from Sherbert v. Verner and still ruled for CSS. He criticized the majority's narrow rationale as a decision "written on the dissolving paper sold in magic shops" that would vanish once the City fixed the contract loophole.
Concurrence — Justice Gorsuch
Justice Gorsuch, joined by Justices Thomas and Alito, agreed with Justice Alito that Smith should be overruled and criticized the majority's narrow path as both analytically strained and practically useless. He argued the majority's novel readings of the City's contract and public accommodations ordinance were untethered from the parties' arguments and the lower courts' analysis, and that the ruling would simply invite Philadelphia to revise its contract and restart the litigation from scratch — continuing years of costly uncertainty for CSS, other faith-based organizations, and lower courts struggling to apply Smith.
How the Court got there
The legal reasoning, step by step
- The Court first confirmed that Philadelphia plainly burdened CSS's religious exercise by forcing the agency to choose between abandoning its religious belief — that certifying a couple as foster parents endorses their relationship — and continuing its decades-long mission of serving children. Even though the City viewed certification as a neutral government credential, CSS's sincere religious understanding of it is entitled to First Amendment protection.
- Under Employment Division v. Smith (1990), laws that only incidentally burden religion are ordinarily not subject to heightened scrutiny as long as they are both religiously neutral and 'generally applicable' — meaning they don't treat religious reasons for noncompliance differently from secular ones. The case turned on whether Philadelphia's policies met that standard.
- Section 3.21 of the City's standard foster care contract prohibited agencies from rejecting prospective foster parents based on sexual orientation — but it also expressly allowed the Commissioner to grant exceptions to that requirement at 'sole discretion.' A policy with a built-in system of case-by-case exceptions is not generally applicable under Smith, because it invites government officials to decide whose reasons for not complying are worthy of accommodation.
- The City argued that a separate contract provision, section 15.1, independently banned sexual-orientation discrimination in foster certifications with no exception at all. The Court disagreed: under Pennsylvania contract law, one provision cannot be read to nullify another, so the Commissioner's discretionary exception authority under section 3.21 had to govern section 15.1 as well — meaning the contract as a whole contained no genuinely general non-discrimination rule.
- The City also argued its Fair Practices Ordinance — a citywide anti-discrimination law — independently required CSS to certify same-sex couples. The Court held the ordinance did not apply to foster care certification at all, because certification is not 'made available to the public' in the ordinance's sense: it is a customized, months-long, selective process that bears little resemblance to the hotels, restaurants, and transit services that public accommodations laws typically govern.
- Because the contract lacked a generally applicable non-discrimination requirement, it was subject to strict scrutiny — the most demanding constitutional test, requiring a compelling government interest pursued in the most precisely tailored way. The City's asserted interests (maximizing foster placements, limiting liability, ensuring equal treatment) failed that test as applied to denying CSS an exemption specifically, particularly given that CSS had never actually turned away a same-sex couple and other agencies stood ready to serve them.
Doctrinal impact
Cases affected by this decision
Distinguishes Employment Div., Dept. of Human Resources of Ore. v. Smith (494 U. S. 872)
Philadelphia's policies fell outside Smith's protection because they were not generally applicable, so the Court applied strict scrutiny without reconsidering Smith.
Reaffirms Church of Lukumi Babalu Aye, Inc. v. Hialeah (508 U. S. 520)
The Court relied on Lukumi's framework for identifying when government policies are not neutral or generally applicable, triggering strict scrutiny.