April 16, 2021
SCOTUS Case Update: Fulton v. City of Philadelphia
by Carly Edelstein, Esq., Office of the Ohio Public Defender
In Employment Division v. Smith, the U.S. Supreme Court, in a decision written by Justice Antonin Scalia, held that the First Amendment’s Free Exercise Clause is not violated by a neutral law of general applicability. In Smith, Native Americans who ingested peyote for sacramental purposes challenged an Oregon law prohibiting consumption of controlled substances on the ground that it violated their religious freedom under the First Amendment. The Court concluded that the Free Exercise Clause does not provide a basis for an exemption from a generally applicable law. That has remained the governing law since 1990.
Fulton v. City of Philadelphia, argued to the Court on Nov. 4, 2020, may upend that understanding of First Amendment rights. A bit of background: Philadelphia contracts with private agencies to provide certain foster care services on behalf of the government. Some of these private agencies are secular, and others, like Catholic Social Services, are religious. Philadelphia’s contract with each of its 30 contractors includes a provision incorporating the city’s Fair Practices Ordinance, which prohibits discrimination on the basis of sexual orientation. In 2018, when the city learned that CSS had a policy against serving LGBT couples wishing to become foster parents, conflict and then litigation ensued.
Among many other arguments, CSS challenged the terms of its contract with the city on the ground that evaluating and certifying same-sex couples would substantially burden the exercise of their religion that views homosexuality as a sin. And critically, one of the three questions presented to the Court was whether Smith should be overturned in favor of a test requiring stricter scrutiny of government action that substantially burdens religious freedom.
The city, on the other hand, asserted that Smith should remain in place, that their actions satisfy the Smith test and that overturning Smith would have drastic consequences for civil rights in the employment context and beyond. With a strict scrutiny test in place, for example, government contractors could object to the antidiscrimination provisions in their government contracts, and all employers subject to Title VII or state antidiscrimination laws could bring robust challenges to those laws on the ground that they substantially burden their religious freedom.
The Court is expected to issue its decision in Fulton before the end of June.