Fulton v. Philadelphia
The Supreme Court unanimously ruled that Philadelphia violated the religious freedom of Catholic Social Services when it refused to work with the agency unless the agency agreed to certify same-sex couples as foster parents.
The decision turned on a narrow feature of Philadelphia's contract — a clause giving a city official the power to grant exceptions to the nondiscrimination rule — and deliberately left open the bigger question of whether the Court's landmark 1990 precedent on religious exemptions 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 summary of CSS's position, explaining why the city's refusal to accommodate the agency could not survive strict scrutiny.
How it got here: A federal district court denied CSS's request for a preliminary injunction; the Third Circuit affirmed; CSS and affiliated foster parents then asked the Supreme Court to step in, which agreed to hear the case.
The Case in Depth
What happened
Catholic Social Services (CSS) has placed children in Philadelphia foster homes for over 50 years as part of the city's publicly funded foster care system. Because of its religious beliefs that marriage is a bond between a man and a woman, CSS will not certify same-sex couples as foster parents, though it readily directs them to any of more than 20 other agencies in the city. After a 2018 newspaper story publicized CSS's policy, Philadelphia froze its referrals to CSS and threatened not to renew CSS's contract unless it agreed to certify same-sex couples.
The question before the Court
Could Philadelphia refuse to renew a Catholic foster care agency's government contract unless the agency agreed to certify same-sex couples as foster parents, despite the agency's religious beliefs about marriage?
The Court's answer
Yes — the Court ruled 9-0 that Philadelphia violated the Free Exercise Clause of the First Amendment by cutting off Catholic Social Services from its foster care program unless the agency agreed to certify same-sex couples.
The ruling turned on a specific feature of Philadelphia's standard foster care contract. Section 3.21 of that contract barred discrimination on the basis of sexual orientation but gave the City Commissioner the sole discretion to grant exceptions. That built-in exemption authority meant the nondiscrimination rule was not "generally applicable" under the Court's 1990 Smith framework — because any policy that allows officials to pick and choose which reasons for non-compliance deserve accommodation may not flatly refuse to extend that system to religious hardship without a compelling reason. Under strict scrutiny, the most demanding constitutional test, Philadelphia could not show a sufficiently compelling reason to deny CSS an exception specifically, since allowing CSS an exemption was unlikely to shrink the pool of available foster families. The Court did not decide whether the Smith framework itself should be reconsidered.
Curious how the Court got there? See the step-by-step legal reasoning →
Why it matters
Faith-based foster care and adoption agencies that operate under government contracts can invoke religious freedom to seek exemptions from nondiscrimination requirements — but only if those requirements already contain some mechanism for discretionary exceptions. Governments that write truly airtight nondiscrimination rules may face a different legal outcome, and the three justices who pushed to overrule the Court's 1990 Smith precedent openly warned that the majority's fix is easily undone.
What changes now
CSS may continue providing foster care services in Philadelphia without certifying same-sex couples, at least under the current contract terms. The case is sent back to lower courts for further proceedings consistent with the ruling. However, as multiple concurrences warn, Philadelphia could simply delete the discretionary exception clause from its contract, which would likely restart the constitutional dispute. The Court's refusal to reconsider Employment Division v. Smith means the broader question of whether religious exemptions from neutral, generally applicable laws are constitutionally required remains unresolved.
What this does not decide
The Court explicitly declined to reconsider Employment Division v. Smith (1990), which holds that neutral, generally applicable laws do not require religious exemptions. This ruling applies only because Philadelphia's specific contract contained a discretionary exception mechanism; it does not decide whether a nondiscrimination rule with no such loophole could override a religious agency's objections. The Court also did not address CSS's free speech claim.
Concurrences and dissents
Concurrence — Justice Barrett
Justice Barrett acknowledged the serious arguments for overruling Employment Division v. Smith — including textual and structural arguments she found compelling — but concluded there was no need to resolve that question because CSS wins under any standard. She expressed skepticism about simply replacing Smith with categorical strict scrutiny, noting unresolved questions about what should follow: whether religious organizations should be treated differently than individuals, whether direct and indirect burdens should be distinguished, and which scrutiny standard should apply. Justice Breyer joined all but the first paragraph of this concurrence.
Concurrence — Justice Alito
“This decision might as well be written on the dissolving paper sold in magic shops.”Justice Alito's sharp criticism of the majority's reliance on a contractual loophole that Philadelphia could easily eliminate.
Justice Alito argued at length that Employment Division v. Smith was wrongly decided and should be overruled now. Reviewing the Free Exercise Clause's text, original meaning, colonial and founding-era history, and decades of prior case law, he concluded that Smith conflicts with all of these and has proven unworkable in practice. He criticized the majority's ruling as temporary — Philadelphia could easily delete the discretionary exception clause from its contract, rendering today's decision meaningless — and charged that continued reliance on Smith leaves religious liberty in a 'confused and vulnerable state.'
Concurrence — Justice Gorsuch
Justice Gorsuch agreed with Justice Alito that Smith should be overruled and criticized the majority's reasoning as strained, ungrounded in the parties' actual arguments, and internally inconsistent. He predicted the decision would provide CSS only temporary relief because Philadelphia can revise its contract or ordinance to close the loophole on which the majority relied. He argued that avoiding the Smith question imposes ongoing costs — in time, money, and legal uncertainty — on religious believers, litigants, and lower courts across the country.
How the Court got there
The legal reasoning, step by step
- The Free Exercise Clause requires that government policies burdening religious practice must be both 'neutral' (not targeting religion) and 'generally applicable' (not creating mechanisms for case-by-case exceptions) in order to avoid strict scrutiny — the most demanding constitutional test, which demands a compelling government interest pursued in the narrowest possible way. The Court confirmed that Philadelphia had burdened CSS's religious exercise by forcing it to either violate its beliefs or lose its contract.
- Under the Court's 1990 decision in Employment Division v. Smith, a law is not 'generally applicable' if it creates a system of individualized exemptions — because such a system invites officials to decide which reasons for non-compliance are acceptable, and then the government cannot refuse to extend that system to religious hardship without a compelling reason. Section 3.21 of Philadelphia's standard foster care contract prohibited discrimination based on sexual orientation but expressly gave the Commissioner the power to grant exceptions at her 'sole discretion,' bringing it squarely within this rule.
- Because a contract cannot be read so that one provision nullifies another — a fundamental rule of Pennsylvania contract law — the Court held that the discretionary exception authority in §3.21 also governed the contract's separate blanket nondiscrimination provision (§15.1). The contract as a whole therefore contained no generally applicable nondiscrimination requirement.
- Philadelphia's citywide Fair Practices Ordinance, which bars discrimination at public accommodations, did not independently require CSS to certify same-sex couples because foster care certification is not a 'public accommodation' in the ordinary sense. Unlike hotels, restaurants, or transit systems, certification involves a months-long, highly selective, and customized assessment of individual families — it is not a service made openly available to the general public.
- Having found that the contract's nondiscrimination requirement was not generally applicable, the Court applied strict scrutiny. The critical question was not whether Philadelphia has a general interest in nondiscrimination, but whether it had a compelling interest in denying an exception specifically to CSS. The Court found it did not: CSS's participation was likely to increase, not reduce, available foster families; the city's liability concerns were speculative; and the city's built-in exception authority already undermined its claim that the nondiscrimination policy could tolerate no departures.
Doctrinal impact
Cases affected by this decision
Distinguishes Employment Div., Dept. of Human Resources of Ore. v. Smith (494 U.S. 872)
This case falls outside Smith because Philadelphia's contract was not neutral and generally applicable.
Reaffirms Church of Lukumi Babalu Aye, Inc. v. Hialeah (508 U.S. 520)
The Court relied on Lukumi's strict scrutiny standard for policies that fail the neutral and generally applicable test.