Supreme Court’s 9-0 Ruling on Gay Foster Parents Divides Justices


In a highly technical opinion, the Supreme Court held today in Fulton v. Philadelphia that Catholic Social Services is exempt from municipal laws that would have required it to place foster children with gay couples. Yet despite this result, the case isn’t the win that religious liberty advocates wanted.

The ruling was unanimous, but divisions appeared in the justices’ separate concurrences. The ruling opinion, written by Chief Justice John Roberts, strained mightily to preserve a key precedent that says the Constitution doesn’t guarantee a religious liberty exemption from laws that are neutral and generally applicable. That precedent, Employment Division v. Smith, survived the axe this time but is still in grave jeopardy, as evidenced by a concurrence from Justice Amy Coney Barrett that contemplated ways to overrule it.

The 1990 Smith precedent, written by Justice Antonin Scalia, has long been targeted by religious liberty advocates. It dates back to an earlier time when conservatives disliked the idea of exemptions for religious groups from neutral, generally applicable laws while liberals eagerly embraced it.

The debate in Smith was about peyote use in American Indian religious ceremonies. Since then, the politics of religious exemptions have flipped, with LGBT rights, abortion and birth control dominating the discussion of religious exemptions.

Justices Samuel Alito and Neil Gorsuch have the Smith precedent squarely in their sights. Justice Clarence Thomas is also ready to reverse it. Today’s case was seen by religious liberty advocates as a golden opportunity to get justices Brett Kavanaugh and Amy Coney Barrett to provide the fourth and fifth votes to overturn Smith.

Why didn’t they? On its facts, the case seemed to belong rather obviously to the Smith paradigm. The Philadelphia law that bars discrimination against gay couples is neutral in the sense that it doesn’t target any religious group. And it fits into any ordinary interpretation of the phrase “generally applicable,” because it applies to everyone.

According to the Smith rule, if a law is neutral and generally applicable, there is no constitutional right to a religious liberty exemption from it. Applying this rule would have meant the city would win and that Catholic Social Services not be able to discriminate in working with the city to place foster kids. To reach the opposite conclusion would, one would think, require the court to reverse the Smith precedent.

But instead of either applying the Smith rule or reversing it, Roberts’s convoluted opinion claimed that the facts of the case didn’t fit under Smith because the Philadelphia rules are not in fact “generally applicable” at all. To reach this bizarre conclusion, Roberts first noted that the city rule saying a provider can’t reject foster parents based on sexual orientation ends with the words “unless an exception is granted by the Commissioner.” This, Roberts insisted, showed that the law wasn’t generally applicable and instead constituted a system of “individualized exemptions.”

But as it turns out, no exceptions have ever been granted. And the city said in court that the exception in question doesn’t refer to an exception for the provider but rather is an escape-hatch if the city doesn’t want to place a child with a particular family.

So to avoid applying the Smith rule, Roberts had to add a second argument that was even more forced. The city had argued that Catholic Social Services had violated an antidiscrimination ordinance that applies to “public accommodations” like restaurants, hotels and swimming pools. That law is neutral and generally applicable. The federal district court agreed with that framing. Roberts held that in fact adoption agencies aren’t public accommodations under the Philadelphia ordinance because they make individualized judgments about who can adopt.

Despite the duct-tape-and-chewing-gum aspect of Roberts’s logic, it was compelling enough to get Kavanaugh and Barrett to sign on, along with the court’s three liberals – who wanted to retain Smith, even though it effectively meant ruling against gay foster parents. The other three conservatives on the court issued or joined concurrences that show it would be misleading to call this opinion “unanimous” despite the 9-0 result.

Gorsuch, in a concurrence joined by Thomas and Alito, devastated Roberts’s strained efforts to avoid the Smith rule. Alito felt moved to write his own concurrence, joined by Thomas and Gorsuch. And Barrett offered her own concurring opinion, joined by Kavanaugh and in part by Breyer.

To fully explain Barrett’s concurrence would require another column, but in essence, she said that while the Smith rule probably needs to go, it need not be replaced with a norm that anyone who presents a religious liberty claim automatically gets an exemption from a neutral, generally applicable law unless the state has a compelling interest and the law is narrowly tailored to that interest.

Barrett did not go so far as to suggest what sort of balancing test would replace Smith. But there will now be an outpouring of popular and academic commentary suggesting alternatives she might adopt.

Barrett clerked for Scalia and considered him her most important intellectual mentor. For her to express a willingness to reconsider the Smith rule reflects the recognition, shared by many around the late justice, that he himself was beginning to question his Smith decision towards the end of his life as most other conservatives rejected it.

Yet so powerful is Barrett’s respect for Scalia — call it filial piety — that she doesn’t want to go all the way to the other extreme, where Alito, Gorsuch and Thomas are. Her vote in the Philadelphia case shows that she intends to think it over. Whatever she concludes is likely to become law in this contentious area.

This column does not necessarily reflect the opinion of the editorial board or Bloomberg LP and its owners.

Noah Feldman is a Bloomberg Opinion columnist and host of the podcast “Deep Background.” He is a professor of law at Harvard University and was a clerk to U.S. Supreme Court Justice David Souter. His books include “The Three Lives of James Madison: Genius, Partisan, President.”

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