Fulton v. Philadelphia
The Supreme Court ruled unanimously that Philadelphia violated the First Amendment by cutting off a Catholic foster care agency's city contract solely because the agency refused on religious grounds to certify same-sex couples — resolving the dispute on narrow contract-language grounds.
All nine justices agreed on the outcome, but three argued the Court should have gone further and overturned a 1990 precedent that generally limits religious exemptions from neutral laws, setting up a continuing debate the majority declined to resolve.
“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 characterization of what CSS was actually asking for — and why denying it could not be justified.
How it got here: A federal district court denied CSS's request for a preliminary injunction; the Third Circuit affirmed; CSS and three affiliated foster parents petitioned the Supreme Court, which agreed to hear the case.
The Case in Depth
What happened
Catholic Social Services (CSS), an arm of the Archdiocese of Philadelphia, has placed children in foster homes for more than 50 years. Based on its religious belief that marriage is a bond between a man and a woman, CSS declines to certify same-sex married couples as foster parents, though it refers such couples to other agencies. After a 2018 newspaper story publicized this policy, Philadelphia stopped sending children to CSS and told the agency it would not renew its foster care contract unless CSS agreed to certify same-sex couples, citing both the contract's non-discrimination clause and a citywide anti-discrimination ordinance.
The question before the Court
Did Philadelphia violate the Constitution by refusing to renew a Catholic foster care agency's city contract unless the agency agreed to certify same-sex couples as foster parents?
The Court's answer
Yes — Philadelphia violated the Constitution by cutting off Catholic Social Services' foster care contract. The City's standard contract let the Commissioner grant exceptions to its non-discrimination requirement at the Commissioner's "sole discretion." That discretionary exemption power made the non-discrimination policy not "generally applicable" — and the government may not maintain a system of individual exemptions while refusing to extend that system to religious hardships without a compelling reason. The City's justifications did not survive that demanding scrutiny.
The Court also found that Philadelphia's separate anti-discrimination ordinance did not apply to CSS in the first place, because foster care certification — a selective, months-long process involving background checks, medical exams, and intensive home studies — is not a "public accommodation" in the ordinary sense. The Court declined to address whether its 1990 ruling generally limiting religious exemptions from neutral, generally applicable laws should be overruled, concluding the case could be decided on narrower grounds.
Curious how the Court got there? See the step-by-step legal reasoning →
Why it matters
Religious organizations providing government-funded social services — foster care, adoption, homeless shelters — can use this ruling to resist contract conditions that conflict with their faith. But because the decision turned on a technical loophole in Philadelphia's contract language, its reach is limited: cities and states that rewrite their contracts or ordinances to close that loophole may force the same fight all over again.
What changes now
The case is sent back to the lower courts for further proceedings consistent with the Supreme Court's ruling. CSS may continue operating under its religious beliefs for now. However, Philadelphia could potentially revise its contract language to remove the Commissioner's discretionary exemption authority, or rewrite its ordinance to expressly cover foster care agencies — moves that would eliminate the specific legal hooks on which the majority's decision rested and likely force renewed litigation.
What this does not decide
The Court declined to decide whether its 1990 Employment Division v. Smith precedent — which generally limits religious exemptions from neutral, generally applicable laws — should be overruled. Three justices argued it should be. The ruling also does not address how similar conflicts in cities or states with differently worded anti-discrimination laws or contracts would be resolved, and the Court did not reach CSS's Free Speech Clause claims.
Concurrences and dissents
Concurrence — Justice Barrett
Justice Barrett agreed with the result and joined the majority opinion in full, but wrote separately to acknowledge the serious arguments that Smith was wrongly decided. She found the textual and structural case against Smith compelling — the Free Exercise Clause seems to guarantee more than just equal treatment — but was uncertain what rule should replace it, flagging unresolved questions about institutional versus individual religious claimants, direct versus indirect burdens, and what form of scrutiny should apply. Because the contract's individualized exemption system triggers strict scrutiny under any version of the doctrine, she saw no need to resolve Smith's fate in this case. (Justice Breyer joined this concurrence except for its first paragraph.)
Concurrence — Justice Alito
Justice Alito would have gone further and overruled Employment Division v. Smith, arguing that it misread the Free Exercise Clause's text and original meaning, recklessly displaced nearly 30 years of precedent, and has proven unworkable in practice. He provided a comprehensive analysis showing that the founding-era understanding of free exercise protected religious practice from government interference whenever it did not threaten public peace or safety — far more protection than Smith's equal-treatment approach. He argued the majority's narrow ruling offers CSS only a temporary reprieve, since Philadelphia can simply delete the never-used exemption power from its contract.
Concurrence — Justice Gorsuch
Justice Gorsuch argued that the Court had granted review specifically to address whether to overrule Smith and criticized the majority for avoiding that question through what he called strained readings of city law and contract provisions that no party, amicus, or lower court had advanced. He predicted the majority's approach guarantees more years of litigation — because Philadelphia can easily rewrite its contract or ordinance — and argued the Court owed a definitive answer to CSS, to religious believers across the country, and to lower court judges who continue to struggle applying Smith's framework.
How the Court got there
The legal reasoning, step by step
- The Court applied the framework from Employment Division v. Smith (1990), which says that laws incidentally burdening religion are generally constitutional if they are both 'neutral' (not aimed at religion) and 'generally applicable' (applying evenhandedly to everyone). Only policies that fail either requirement face the strictest constitutional scrutiny. The majority assumed without deciding that Philadelphia's policies were neutral, and instead focused on whether they were generally applicable.
- A law is not 'generally applicable' when it creates a mechanism for individualized exemptions — because that mechanism invites government officials to decide whose reasons for non-compliance deserve solicitude, and the government then cannot deny that same consideration to religious hardships without a compelling reason. The Court drew this rule from Smith itself, which in turn relied on the earlier Sherbert v. Verner decision.
- Section 3.21 of the City's standard foster care contract prohibited agencies from discriminating based on sexual orientation — but it also allowed the Commissioner to grant exceptions at the Commissioner's 'sole discretion.' That built-in exemption authority, the Court held, made the non-discrimination requirement not generally applicable, regardless of whether the Commissioner had ever actually granted an exemption. The existence of the formal mechanism was enough.
- State contract law — under which one part of a contract cannot be read to nullify another — meant that the Commissioner's discretionary exemption power in §3.21 also governed a separate non-discrimination clause (§15.1) that on its face contained no exception. The contract as a whole therefore contained no generally applicable non-discrimination requirement.
- Because the contract's exemption mechanism made the policy subject to strict scrutiny — the most demanding constitutional test, requiring a compelling government interest pursued in the narrowest possible way — the Court asked whether Philadelphia had a compelling interest specifically in denying an exception to CSS. It did not: including CSS would likely increase, not reduce, the number of available foster families; the City's liability fears were speculative; and having an exemption system at all undermined the argument that non-discrimination could brook no departures.
- Separately, the Court concluded that Philadelphia's Fair Practices Ordinance (the citywide anti-discrimination law) did not cover CSS because foster care certification is not a 'public accommodation.' Making a service 'available to the public' means making it generally accessible — like a hotel or restaurant — and the months-long, selective, highly individualized screening process for foster parents bears no resemblance to that model.
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 contract was not generally applicable.
Reaffirms Church of Lukumi Babalu Aye, Inc. v. Hialeah (508 U. S. 520)
Reaffirmed as the controlling standard requiring strict scrutiny for non-neutral or non-generally-applicable policies.