Fulton v. City of Philadelphia and the Expansion of Free Exercise Claims

In 2018, Philadelphia banned Catholic Social Services (CSS), a church-based charity organization,[1] from participating in the city’s foster care system because they refused to place children with same-sex couples.[2] Citing their Catholic beliefs, CSS argued that the free exercise clause (the First Amendment’s provision prohibiting governmental restrictions on the free exercise of religion) entitled them to the right to refuse to license qualified same-sex couples to be foster parents purely on the basis of their sexuality.[3] CSS sued the city of Philadelphia to have their license reinstated and had their request for a preliminary injunction denied by the District Court. On appeal, the Third Circuit held that Philadelphia’s anti-discrimination policy was neutral and generally applicable, meaning that, under Employment Division v. Smith (1990),[4] even those whose religious beliefs were inconsistent with the law were not exempt from following it.[5] CSS appealed to the Supreme Court, which granted certiorari last spring to answer three questions:

1 - “Whether free exercise plaintiffs can only succeed by proving a particular type of discrimination claim-namely that the government would allow the same conduct by someone who held different religious views-as two circuits have held, or whether courts must consider other evidence that a law is not neutral and generally applicable, as six circuits have held?”[6]

2 - “Whether Employment Division v. Smith should be revisited?”[7]

3 -  “Whether a government violates the First Amendment by conditioning a religious agency's ability to participate in the foster care system on taking actions and making statements that directly contradict the agency's religious beliefs?”[8]

Analyzing the questions presented in Fulton v. City of Philadelphia reveals that the Supreme Court is increasingly willing to entertain broad claims about the extent of the free exercise clause. With the confirmation of Justice Amy Coney Barrett, the Supreme Court’s likely move toward a more expansive view of religious freedom will have massive implications for LGBT+ rights, access to reproductive health services, and other constitutional and statutory rights that many Americans hold dear.

Question One - Circuit Split on Evaluating Free Exercise Claims

Part of the ongoing debate between different theories of statutory interpretation, this question asks how laws’ neutrality (whether the law is directly targeted to a specific religious group) and general applicability should be evaluated by courts. The question arises from a circuit split (different interpretations of the law by different Circuit courts) between courts that have held that a successful free exercise claim requires the statute in question to directly target people or groups with specific religious views and those that have held that outside evidence of factors that shape a law’s neutrality should be considered. These outside considerations are especially relevant in light of Espinoza v. Montana Department of Revenue (2020), in which Justice Alito wrote a concurrence arguing that the historical anti-Catholic bias of the Blaine Amendment should be considered in evaluating the law’s present impact on religious, and specifically Catholic, institutions.[9] While Justice Alito’s concurrence is not binding precedent, his perspective that outside evidence should be evaluated when judging the neutrality of a law could have major implications for free exercise claims if accepted in this case.

Question Two - Employment Division v. Smith

Employment Division v. Smith (1990) held that a person’s religious beliefs do not exempt them from “the obligation to comply with a law that incidentally forbids (or requires) the performance of an act that his religious belief requires (or forbids) if the law is not specifically directed to religious practice and is otherwise constitutional as applied to those who engage in the specified act for nonreligious reasons”.[10] This case, also known as the “peyote case,” involved Native American individuals who argued that they should not have been fired and denied unemployment for violating certain drug laws given the fact that their religion required them to ingest peyote, a strong hallucinogen.[11] In a 6-3 decision, the Supreme Court held that individuals’ religious beliefs do not exempt them from neutral, generally applicable laws. Because the government regulated hallucinogens for reasons having nothing to do with religion, the individuals involved were still required to abide by government regulations despite their religious beliefs.

Applied to Fulton, Employment Division v. Smith’s precedent is fairly clear — since Philadelphia’s anti-discrimination statute is neutral and generally applicable, as it was not written to discriminate against Catholics or any other religious groups, CSS is obligated to abide by Philadelphia’s rules if they would like to be eligible to place children in foster homes. Revisiting Employment Division v. Smith then means that those with religious beliefs in tension with generally applicable law could potentially be exempt from following the law. If this decision were to be narrowly tailored toward the specific case, the holding would probably raise more questions than it answers about the limitations of free exercise claims against generally applicable statutes. 

Question Three - Conditions for Participation

This question gets to the heart of modern free exercise jurisprudence by asking whether free exercise claims can exempt religious individuals and organizations not only from restrictions on their behavior, but also from conditions on their voluntary participation in state-run affairs. If the court decides that the answer to this question is “no,” the opinion will largely be an affirmation of Employment Division v. Smith. If, however, they find the answer to be “yes” (the arguably more likely outcome given the current ideological breakdown of the court), this would be a major move for First Amendment jurisprudence, cementing the Religious Freedom Restoration Act (RFRA)’s status as a “super statute” that overrides all other generally applicable laws.[12] If the Supreme Court decides to take on this broader view of the free exercise clause, it would have massive consequences, not just for the type of anti-discrimination statutes implicated in this case, but also for other legal issues that may be tied to individuals’ religious beliefs.

            Overall, regardless of how the case is decided, the questions presented in Fulton v. City of Philadelphia highlight the Supreme Court’s willingness to entertain arguments with increasingly expansive understandings of the free exercise clause, and the court’s likely willingness to scrap their 1990 reasoning in favor of a new, even stricter version of First Amendment scrutiny indicates that free exercise claims may become a critical element of anti-discrimination statutory jurisprudence.

[1] “Catholic Social Services.” Catholic Social Services. Accessed October 9, 2020. https://cssphiladelphia.org/about/.

[2] "Fulton v. City of Philadelphia." Oyez. Accessed October 12, 2020. https://www.oyez.org/cases/2020/19-123.

[3] Ibid.

[4] Employment Div. v. Smith, 494 U.S. 872 (1990).

[5] Fulton v. City of Philadelphia, 2018, 922 F.3d 140. 

[6] Fulton v. City of Philadelphia, 19-123. Questions Presented, https://www.supremecourt.gov/docket/docketfiles/html/qp/19-00123qp.pdf.

[7] Ibid.

[8] Ibid.

[9] Espinoza v. Montana Department of Revenue, 591 U.S. __ (2020).

[10] Employment Div. v. Smith, 494 U.S. 872 (1990)

[11] "Employment Division, Department of Human Resources of Oregon v. Smith." Oyez. Accessed October 11, 2020. https://www.oyez.org/cases/1989/88-1213.

[12] Little Sisters of the Poor Saints Peter and Paul Home v. Pennsylvania, 591 U.S. ___ (2020),