Supreme Court Narrow Decision Religious Discrimination I KingSpry

Unanimous Supreme Court Issues Narrow Decision Regarding Government Limits on Religious Discrimination by Government Contractors

Posted on June 18th, 2021
by Rebecca A. Young

The Fulton v. City of Philadelphia case has been followed by many, including those with an interest in foster care, LBGT rights and religious freedoms. 

The decision upheld the right of Catholic Social Services (“CSS”) to refuse to certify same-sex and unmarried couples as foster parents, as certifying such couples would violate the religious beliefs of the Catholic Church. 

The decision also highlighted the need for foster parents and noted the importance of the government interests in providing safe homes for children. 

The Court held that the City’s requirement that all foster agencies agree to certify gay couples violated the First Amendment of the Constitution with regard to the free exercise of religion. The decision did not establish any new legal standards and was based on specific terms in the City’s contract that were added in 2018 after the City Council received a complaint about a different agency (not CSS).

The decision did not address any of the broad constitutional issues that were raised and argued by the many parties interested in this case.  Six of the nine justices participated in issuing separate opinions stating why and how the existing standard for review of governmental restrictions on discrimination by religious entities should have been reviewed and changed. 

Under existing precedent, government actions are constitutional if they are neutral laws that apply to everyone.  Here, the Court determined that the City’s contract allowed for individual exemptions from the non-discrimination requirement that could be granted at the sole discretion of the Commissioner.  Because the contract allowed for individual exemptions, the non-discrimination requirement was subject to strict scrutiny – the City had to establish that it could not meet its interest in providing foster homes in a manner that would not place a burden on CSS’s religious freedoms.  The City did not document that granting an exemption to CSS would prevent it from providing foster care services.  Therefore, imposing the non-discrimination requirement violated CSS’s constitutional right to free exercise of religion.

Like most Supreme Court decisions, the legal analysis discusses issues that are not central to the final decision.  A portion of interest to foster care providers is the discussion whether the provision of foster care is a “public accommodation.”  A public accommodation is a good or service that is made available to the public; it is unlawful to discriminate in the provision of public accommodations – for example, to discriminate on the basis of race in the provision of housing. 

The Court determined that certification as a foster parent is not made available to the general public.  The process to become certified to provide foster care requires extensive evaluation of the individual’s physical and mental health, a home study, background checks and other inquiries into the applicant’s relationships.  Therefore, the provision of foster care services is not a public accommodation. 

What it Means

Governments can enforce non-discrimination laws when they are created and enforced uniformly, even if those laws affect religious entities.  However, they cannot target religious entities and their beliefs in a way that violates the right to free exercise of religion.  Therefore, individual rights against discrimination are preserved under this decision.  The City’s anti-discrimination ordinance protection of LGBT rights remains intact and enforceable.

Children that cannot live with their birth parents need foster parents.  Fostering is a calling and meeting each child’s individual needs and ensuring their safety are the key factors in identifying foster parents. 

heARTbeat is a publication of KingSpry’s Adoption Law and Assisted Reproductive Technology Law Practice Group. It is meant to be informational and does not constitute legal advice.