Fulton v. City of Philadelphia

The dispute arose from Philadelphia’s publicly funded foster-care system and its long relationship with Catholic Social Services. CSS had evaluated and supported foster families for the city, but it did not certify unmarried couples or same-sex couples because of its religious understanding of marriage. Philadelphia’s policy required agencies to certify qualified applicants without regard to sexual orientation, and the city stopped referring children to CSS after learning of the practice.¹

CSS did not claim a right to deny a child placement to a same-sex couple after certification; it sought a religious accommodation allowing it to refer such applicants to another agency. The city maintained that uniform certification rules were necessary to prevent discrimination and administer foster care. CSS, foster parent Sharonell Fulton, and other parties sued under the First Amendment and related federal law.²

The Court held that Philadelphia’s contractual requirement was not generally applicable because the city retained discretion to grant exceptions. Chief Justice John Roberts wrote that the Free Exercise Clause requires the government to satisfy strict scrutiny when it imposes burdens through a policy that is not neutral and generally applicable.¹

The city argued that its interest in equal treatment and protecting children could not be met through an exception for CSS. The Court disagreed, emphasizing that the city had not shown why an accommodation would undermine its foster-care system, especially because CSS was willing to refer same-sex couples to other providers. The judgment therefore turned on the structure of Philadelphia’s policy and its discretionary waiver provision, not on a categorical constitutional exemption for religious agencies.¹

Fulton preserved, rather than replaced, the central rule of Employment Division v. Smith: a neutral and generally applicable law ordinarily need only satisfy rational-basis review when it incidentally burdens religious conduct. Because Philadelphia’s policy permitted individualized exceptions, the Court treated it as subject to strict scrutiny and found that the city had not used the least restrictive means of pursuing its goals.¹

The justices divided over whether Smith should be reconsidered. Justices Clarence Thomas, Samuel Alito, and Neil Gorsuch argued that the precedent should be overruled, while Justice Amy Coney Barrett, joined in part by Justice Brett Kavanaugh, discussed unresolved questions about what standard might replace it. Those separate opinions did not control the judgment. The majority also avoided deciding the broader question of whether a religious foster-care provider could refuse to certify same-sex couples under a policy with no discretionary exceptions.¹

The decision was narrower than its cultural and political symbolism suggested. The Court did not hold that Philadelphia’s nondiscrimination policy was unconstitutional in every application, and it did not establish a general right for contractors to disregard sexual-orientation protections. Instead, the decisive feature was the city’s ability to make exceptions under its contract with foster-care agencies.¹

The case also involved a practical feature of child-welfare administration: CSS’s role was certification and support, while the city and other agencies could handle referrals and placements. That institutional separation shaped the Court’s view that accommodating CSS might be feasible. Foster care is administered through a mixture of public agencies and contracted organizations, so the ruling’s effects depend heavily on local contract language, licensing rules, and available alternative providers.³

• The judgment was unanimous, but the reasoning produced several separate opinions.
• The case was decided on Free Exercise grounds; the Court did not resolve all claims under the Establishment Clause or equal-protection principles.

Free Exercise Clause

The First Amendment provision protecting the exercise of religion from governmental interference.

strict scrutiny

The most demanding form of constitutional review, requiring a compelling governmental interest and a narrowly tailored policy.

generally applicable law

A rule that applies broadly without targeting religious conduct or allowing comparable discretionary exemptions.

foster-care certification

The process by which an agency evaluates and approves adults or families to provide foster care.