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Fulton v. City of Philadelphia

Supreme Court of the United States · 2021 · Constitutional Law

Constitutional LawFree Exercise ClauseReligious LibertyFirst AmendmentFree Exercise Clausegeneral applicabilityindividualized exemptionsstrict scrutiny

Facts

Philadelphia contracts with private foster agencies, including Catholic Social Services, to certify foster families and support placements. CSS, based on its religious beliefs about marriage, will not certify unmarried couples or same-sex married couples, though it will certify gay or lesbian individuals as single foster parents and would refer any same-sex couple to other agencies. After learning of CSS's policy, the City stopped referring children to CSS and said it would not renew CSS's contract unless CSS agreed to certify same-sex couples. The City justified its action under a contractual non-discrimination provision and the city's Fair Practices Ordinance.

Issue

Whether Philadelphia violated the First Amendment's Free Exercise Clause by refusing to contract with CSS for foster care services unless CSS agreed to certify same-sex couples as foster parents.

Rule

Under the Free Exercise Clause, laws or policies that burden religious exercise are ordinarily not subject to strict scrutiny only if they are neutral and generally applicable. A policy is not generally applicable if it invites the government to consider the particular reasons for a person's conduct through a mechanism for individualized exemptions, and once strict scrutiny applies, the government must show that denying the specific religious exemption furthers interests of the highest order through means narrowly tailored to those interests.

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One of 10 multiple-choice questions for this case. Pick an answer to see why.

Seattle contracts with private family-counseling nonprofits to conduct pre-adoption home assessments. One contractor, Harbor Faith Services, declines on religious grounds to approve unmarried cohabiting couples, and the city suspends new referrals. The contract bars denial of services based on marital status, but also states that the director may grant exceptions "in the director's sole discretion."

If Harbor Faith Services brings a Free Exercise challenge, which is the strongest argument that the city's policy is not generally applicable?

Explanation. Under the majority opinion, a policy is not generally applicable when it invites the government to consider the reasons for noncompliance through a mechanism for individualized exemptions. A clause allowing exceptions in an official's sole discretion triggers strict scrutiny whether or not any exemption has ever actually been granted. The fact that the rule appears in a government contract does not remove Free Exercise limits.