The Supreme Court recently issued a decision in Fulton v. Philadelphia, a case the court heard in November of 2020 relating to LGBTQ+ issues and religious rights. In brief, the City of Philadelphia terminated contracts with two religious foster care organizations that would not accept same-sex couples as foster parents. One of those organisations changed their policies, while the other, Catholic Social Services (CSS) filed a lawsuit, claiming that Philadelphia’s foster care nondiscrimination requirements violated their religious liberties. The case, therefore, not only served as an important one for LGBTQ+ individuals attempting to gain equal legal footing to heterosexual individuals in Philadelphia’s foster care systems, but also as one that would impact the future of a struggling foster care system defined by rampant foster parent scarcity.
In an unanimous decision, the Supereme Court sided with CSS on the grounds that “Philadelphia’s refusal to contract with Catholic Social Services for the provision of foster care services unless CSS agrees to certify same-sex couples as foster parents violates the free exercise clause of the First Amendment”. The court, however, did not make any sweeping generalizations regarding religious liberties. Instead, the court found that Philadelphia’s nondiscrimination policy was not “generally applicable” as would be necessary under Employment Division v. Smith rule, a case that established precedent for denying religious exemptions for “neutral laws of general applicability.” In ruling this way, the court made exemptions for CSS in this specific context, but did not overturn the ability to deny religious exemptions found under Smith.
Neither side has emerged particularly pleased with the court’s decision. Those supporting the city’s nondiscrimination code are obviously concerned with the court’s ruling, as it fails to require governmentally contracted organizations to uphold the equality of LGTQ+ individuals. CSS’s supporters, however, perhaps have more qualms with the decision. Fulton presented a rare opportunity for religious enthusiasts to overturn Smith, the case that permits the denial of religious expression in certain cases. While the court did rule in favor of CSS, upholding their right to religious practice in this case, it did not attempt to overturn or contradict Smith.
This is not the first time the Roberts Court has ruled in this way. In Mahanoy v. B.L., a high school student contested her removal from her school’s cheerleading team on the basis of something she had said off-campus. Rather than address the issues of Tinker’s application to off-campus speech, and what qualifies as off-campus speech, the court made its decision, in an 8-1 vote, based on the specifics of Mahanoy. This is said to be part of Chief Justice Robert’s attempts to rebuild trust in the government and the court in creating the occasion for unanimous or near-unanimous decisions in light of increasing political division.
For LGBTQ+ individuals and allies, while it is easy to fault the court, especially its progressive members, for siding with this decision, it is important to note that this case sets very little meaningful precedent. The court’s decision, predicated on such narrow grounds, does not alter or amend the Employment Division v. Smith case, nor does it put forward a new doctrine for dealing with future confrontations of religious groups and the LGBTQ+ community. While in this case, it may appear that equality for the LGBTQ+ community was ruled as secondary to free practice of religious liberties, the court’s ruling was not nearly wide enough to serve as a major setback to the community, but rather a stern reminder that the fight for LGBTQ+ equality has yet to be won.