Fulton v. Philadelphia: What Happens When Religious Freedom Becomes Legally Sanctioned Bigotry?

LGBTQ youth advocate says “non-discrimination saves lives” for foster kids—so why did the Supreme Court side with Catholic Social Services?

The unanimous 9–0 decision was unexpected, but the outcome was not a surprise. Every member of the U.S. Supreme Court sided with Catholic Social Services in its constitutional challenge of Philadelphia’s anti-discrimination requirement for foster parent placement agencies. Fulton v. City of Philadelphia was one of a handful blockbuster conservative decisions handed down by the Supreme Court this June.

In short? The case tackled whether gay parents can be legally refused the opportunity to foster children through a particular religious agency because of whom they love. This case sits at the crossroads of a lengthy, complicated, and fraught history of America’s not-so-separate Church and State; the 1st amendment protects religious freedom, but what happens when freedom becomes legally sanctioned discrimination?

Weston Charles Gallo was placed in the foster care system at age 14 when his biological parents neglected him for identifying as gay. After hospitalizations, shelters and foster home placements, Weston says he was on “the verge of suicide” when he finally found his forever family. “My two dads saved my life,” says Gallo.

“If my dads were turned away, I might not be here to talk to you today. Turning away same-sex couples from fostering and adopting harms all children in the child welfare system.”

Gallo says that same-sex couples are 7 times more likely to foster and adopt, especially older children, large sibling groups, and children with disabilities. When you turn away LGBTQ families, you shun the 437,000 children calling the U.S. foster care system home.

“All agencies must affirm LGBTQ+ youth — discriminating against LGBTQ+ adults undermines that,” says Gallo.

“I urge all policy makers to consider that our lives, futures and outcomes are more important than the personal beliefs of adults. We’re not asking anyone to change their beliefs, we’re asking to be affirmed and loved for who we are. I think non-discrimination essentially saves lives.”

Authored in a 14-page decision by Chief Justice John G. Roberts, Jr. — flanked by a 77-page screed by Justice Alito urging an even broader and more deeply bigoted ruling — the Court decided CSS was not required to evaluate same-sex couples for placement, despite Philadelphia’s anti-discrimination rule.

The Court had essentially previewed its rationale on the shadow docket earlier this year, when it invalidated several California COVID-related restrictions because exceptions offered to certain types of businesses were not made available to churches or other places of worship. Many have referred to this outcome as giving ‘most-favored nation’ status to religious exercise, like Steve Vladeck, a law professor at the University of Texas who had this to say on the ruling:

“Those who like these decisions are getting increasingly comfortable with the court flouting and defying its own internal standards and rules for this kind of relief simply because they like the result. In the process, they attack critics for being insufficiently sensitive to religious liberty. And that’s a preposterous claim. These rules exist for a reason. If the justices are going to defy them or change them, the very least they can do is tell us that.”

A potential alternative for the Fulton case, which was possible but not a certainty, was the overruling of Employment Division v. Smith, a 1990 decision authored by iconic conservative Justice Antonin Scalia. In that case, the Supreme Court held that a statute prohibiting possession of certain drugs did not infringe on the religious exercise of a Native American who sought to use peyote during religious ceremonies.

Justice Scalia famously wrote that “neutral laws of general applicability” — such as prohibitions on controlled substance possession — did not infringe on religious liberty despite the intoxicant being a sacred ritual dating back thousands of years. Meanwhile in Fulton, Justice Alito pressed for just such an outcome.

Some have described it as a failed majority opinion but instead, it appears that Chief Roberts brokered a deal to convince the Court’s more liberal justices to agree with the outcome. No dissenting opinions were filed. (There must be a Justice Sotomayor dissent in the shredder somewhere.) Some commentators have insisted this result was a calculated move — a conciliatory olive branch of sorts — by the three liberal justices to avoid an even worse outcome. But did it?

In a battle of competing rights, religious liberty clearly won out.

The Catholic agency, Chief Justice Roberts wrote, “seeks only an accommodation that will allow it to continue serving the children of Philadelphia in a manner consistent with its religious beliefs; it does not seek to impose those beliefs on anyone else.”

But how can that be? Denying a couple the opportunity to foster a child — or, at least, denying them the opportunity through your particular agency — seems like the very definition of an imposition on other people.

Chief Justice Roberts’s decision avoids the Employment Division question altogether. But it seems hard to cast this as just a narrow ruling.

Some have analogized this outcome to Masterpiece Cakeshop v. Colorado Civil Rights Commission, a 2018 decision authored by now-retired Justice Anthony Kennedy, which allowed a baker to refuse to bake a cake for a same-sex couple’s wedding celebration. (Colorado law prohibits businesses from refusing to serve customers based on their sexual orientation, among other characteristics.)

The decision, which was effusive, typifying Justice Kennedy’s regard for the dignity of individuals — especially LGBTQ people — took umbrage at the Commission’s apparent hostility to religious beliefs.

Fulton may be written narrowly, but it is not a carbon copy of Masterpiece.

First, Chief Justice Roberts does little to affirm the dignity of the LGBTQ families raising children in the foster system. Second, it all but reverses the ordering in Smith by putting religion over all else. As Columbia Law School Professor Katherine Franke explained on the Strict Scrutiny podcast, the Supreme Court has made clear that religious freedom has primacy in the Constitution — it reigns supreme over other rights, including equal protection. Like landlords — under the Fair Housing Act — refusing to rent any of their thousands of properties to unmarried or same-sex couples. (AKA the Mrs. Murphy exception).

And because Title VII applies only to employers with 15 or more employees, huge companies owned by religious families can deny jobs, overlook people for promotion, and even subject others to harassment based on their religious views.

The Supreme Court’s clear siding with religious liberty has real ripple effects. It undercuts important LGBTQ victories from the prior term in important civil rights cases involving employment discrimination and it gives a license to discriminate.

“The decision from Fulton has caused increased anxiety in our lives,” says Amanda Cruce, a foster parent and President of Florida FAPA.

“Our family — from my wife and I to our kids — were so hopeful that there would be protection for families and youth through Fulton. But without that we are fearful that discrimination will prevail and become strengthened.

Blanket religious exemption in child welfare can bring a lot of fear for those of us who are currently fostering and makes it harder to recruit new LGBTQ+ families to the field.”

Amanda’s anxiety is more than warranted. The practical implications of Fulton are that laws with any type of exceptions — which is basically most laws — must extend exceptions to religious practices if the law infringes on exercising religious freedoms.

Justice Alito may be “disappointed,” but ultimately he got the outcome he wanted. Religious liberty is supreme at the Highest Court in the Land.