United States Supreme Court rulings in recent years have revealed a Court deeply divided along ideological lines. For many years the nine justices of the court were often divided 5-4 on cases with ideological implications, with four justices consistently on the conservative side of social issues, and four justices on the liberal side, with Justice Anthony Kennedy providing the deciding vote that would swing the decision one way or another. A series of retirements and deaths of justices on the court during the presidency of President Donald Trump resulted in what many considered a 6-3 conservative majority, including the replacement of Justice Anthony Kennedy.

The Court recently ruled unanimously in a case involving a challenge by a Catholic agency against a pro- LGBTQ government policy. This case merits closer review for both what it does and does not represent about the status of Supreme Court jurisprudence.

The case, Fulton v. Philadelphia,1 involved the question of whether a religious organization has to allow individuals whose lifestyles conflict with the organization’s religious beliefs to participate in services provided by the organization. The background to this case is as follows. Since 1798, religious organizations have provided care for needy children in Philadelphia. These religious organizations and other private agencies investigate couples who are willing to provide foster care, and certify them as being appropriate placements for needy children. The city of Philadelphia (City) then contracts with these organizations to provide foster care placements for needy children that the city takes into custody.

A local newspaper ran a story that Bethany Christian Services, based in Grand Rapids but operating offices in Philadelphia, would not certify same-sex couples to be foster parents. An investigation ensued and the City learned that Catholic Social Services (CSS) also refused to certify same-sex couples on religious grounds. The City ultimately stated that it would not renew contracts with foster care organizations that discriminated against same-sex couples. Bethany Christian Services changed its policy to comply, but CSS refused to change and its contract was not renewed.

This case was brought against the City by two foster mothers and by CSS, alleging that the City’s actions had violated their First Amendment right to the Free Exercise of Religion. The foster mothers were from two different families that had previously provided foster care for children in need through CSS. CSS argued that certification as a foster family required them to put their stamp of approval on the relationship of the potential foster couple, and that to approve of a homosexual relationship would be an endorsement of that relationship, which would be contrary to their religious beliefs.

The Federal District Court refused to issue injunctive relief against the City, finding that CSS and the mothers were unlikely to prevail in their case. The Third Circuit Court of Appeals agreed, and ruled unanimously in favor of the City. CSS and the mothers then appealed to the Supreme Court.

The precedent that the lower courts relied upon in ruling in favor of the City was the Supreme Court decision in Employment Division v. Smith,2 a 1990 case that had held that, if the government passes neutral laws of general applicability, they will be upheld even if they impose on the free exercise of religion. If a law is not neutral and generally applicable, it must pass what is known as “strict scrutiny,” and the government must show a compelling state interest that merits imposition on the exercise of religion. In the Smith case, an individual was denied unemployment benefits because of his use of a drug called peyote in a religious ceremony. Although the law impinged on the free exercise of his religion, it treated his religion the same as others, and applied equally to the general public. Applying this precedent to the facts of the Fulton case, the courts found that the City’s prohibition on discrimination applied equally to all religions, and also applied equally to the general public.

The Supreme Court unanimously disagreed with the lower courts. First, the court found that Philadelphia’s law was not neutral and generally applicable because the law that prohibited participating agencies from discriminating based on sexual orientation included a provision that exceptions to this rule could be provided “at the sole discretion” of the Commissioner of Human Services. The Court found that this exception allowed the government to select who received an exception, so the law was no longer neutral and generally applicable to all potential participants.

The City had also argued that discrimination based on sexual orientation violated the Philadelphia Fair Practices Ordinance, which prohibits interference with public accommodations based on sexual orientation. The Court stated that certification as a foster parent was not a service generally made available to the public within the usual sense of a public accommodation, and therefore this act did not apply to the case.

Because the City’s contractual prohibition on discrimination was not neutral and generally applicable, the Court found that strict scrutiny applied, and that the City had not shown a compelling interest in preventing CSS from providing services. Chief Justice Roberts, writing the majority opinion, wrote that the City had burdened CSS’s religious exercise by putting it to the choice of curtailing its mission or approving relationships inconsistent with its beliefs. In essence, the Court’s decision rested on the fact that the government’s ability to grant exceptions kept the government’s actions from being neutral and generally applicable.

Therefore, although at first blush this decision seems to be a rare unanimous decision in favor of religious liberty, the grounds for the ruling are so narrow that the decision is of little assistance to believers. Chief Justice Roberts seems inclined to try to keep the Court from being politicized, especially with public discussion of “packing the Court” with additional liberal justices. By construing the decision in this case so narrowly, the Chief Justice was able to build a coalition that demonstrated unanimity on the sensitive issue of discrimination based on sexual orientation.

However, although the Court was unanimous in its result, three Justices—Alito, Gorsuch, and Thomas— filed concurring opinions that agreed with the result of the opinion, but argued that Smith should be overturned to protect religious freedom. Justice Alito pointed out that if Prohibition-era legislation banning alcohol had not contained exceptions for religion, it could have outlawed communion in churches, and the legislation would have been upheld under Smith. These justices argued that Smith had changed forty years of prior precedents, and that the law should go back to the standard before Smith, that a law that imposes a substantial burden on religion can only be sustained if it is narrowly tailored to serve a compelling government interest.

In contrast, Justice Barrett wrote a concurring opinion that was joined by Justice Kavanaugh, which acknowledged that there were textual and structural arguments against Smith, but that “there would be a number of issues to work through if Smith were overruled.” Ultimately these justices avoided overruling Smith by sidestepping instead to the narrow issue of the City’s ability to grant exceptions “in its sole discretion.” This position seems shortsighted, since, as Justice Alito pointed out, the City could simply re-write its contract to remove this discretionary exemption language, and again enforce the prohibition on discrimination. The facts of the case also included indications that the City had taken actions with the intent to try to force CSS to provide services to homosexuals, and CSS had argued that the City had transgressed the neutrality standard by proceeding in a manner intolerant of religious beliefs. The Court in the Masterpiece Cakeshop case,3 involving the Colorado wedding-cake baker, had ruled in the baker’s favor in part because of the hostile actions of the Colorado Civil Rights Commission towards his religion. But the Court in this case sidestepped all such issues by taking the narrow ruling that it did. It appears that rather than a 6-3 conservative majority, the Court may be made up of three liberal justices, Breyer, Kagan, and Sotomayor, three conservative justices, Alito, Thomas, and Gorsuch, and three more moderate justices who are more prone to form coalitions, Roberts, Kavanaugh, and Barrett.

There are still lessons we can learn from this decision.  First, it was again demonstrated that public accommodations are more easily regulated by the government. When we open our schools up to the general public for sporting events and other activities, are we providing public accommodations that invite government regulation and intrusion? We must be very wise in dealing with such issues. Next, we must not hesitate to state our religious beliefs and acknowledge them as the basis for our actions. This is also a necessary part of our Christian walk, but in the legal context it also provides opportunity to avail ourselves of the legal protections that have been provided. In the Fulton case, the City argued that certification of a foster couple was not a religious activity, but CSS stood firmly on the principal that their approval of a same-sex couple was an endorsement of that relationship. Too many in the church world today waffle on such issues in an attempt to accommodate many viewpoints, and we must be cautious that we are not tempted to do likewise. May our heavenly Father strengthen us to have wisdom and stand in these trying times.


1 Fulton v. City of Philadelphia, 593 U.S. ___ (2021).
2 Employment Division v. Smith, 494 U.S. 872 (1990).
3 Masterpiece Cakeshop v. Colorado Civil Rights Commission,
584 U.S. ___ (2018)