141 S. Ct. 1868 (2021)
Catholic Social Services (CSS), a foster care agency affiliated with the Catholic Church, has provided foster-care and related services in Philadelphia for over two centuries.1 During this period the Philadelphia foster-care system has depended on cooperation between the City and private agencies like CSS.2
CSS maintains the religious belief that marriage is a sacred bond between a man and a woman.3 Therefore CSS will not certify same-sex married couples, although it will certify single gay and lesbian individuals and place gay and lesbian children.4 The agency has adhered to these beliefs while contracting with the City for over fifty years.5 No same-sex couple has ever sought certification from CSS.6
In 2018 a newspaper reported that CSS would not consider prospective foster parents in same-sex marriages.7 The City Council called for an investigation by the Philadelphia Commission on Human Relations.8 The Department Commissioner met with CSS leadership and subsequently informed the agency that it would no longer receive referrals.9 Future contracts would require agreement to certify same-sex couples under the nondiscrimination provision in the standard foster-care contract and the city's Fair Practices Ordinance.10
CSS and three affiliated foster parents sued the City, the Department, and the Commission in federal district court.11 They alleged violations and sought injunctive relief.12 The district court denied preliminary relief.13 The Third Circuit affirmed, and the Supreme Court granted certiorari to review the determination.14
The City's standard foster-care contract includes in section 3.21 a nondiscrimination provision requiring an agency not to reject prospective foster or adoptive parents based on sexual orientation unless an exception is granted by the Commissioner or the Commissioner's designee in his or her sole discretion.15 Certification as a foster parent involves a customized and selective assessment that includes background checks, medical exams, an in-depth home study considering mental and emotional adjustment and family relationships, and takes months to complete.16
Whether the City of Philadelphia violated the Free Exercise Clause by refusing to contract with Catholic Social Services unless the agency agreed to certify same-sex couples as foster parents?17
The Free Exercise Clause of the First Amendment, made applicable to the States through the Fourteenth Amendment, prohibits government from burdening sincere religious exercise unless the challenged policy is neutral and generally applicable.18
Yes. Catholic Social Services has provided foster-care and related services in Philadelphia for over two centuries. During this period the Philadelphia foster-care system has depended on cooperation between the City and private agencies like CSS. CSS maintains the religious belief that marriage is a sacred bond between a man and a woman.
Therefore CSS will not certify same-sex married couples, although it will certify single gay and lesbian individuals and place gay and lesbian children. The agency's policy burdens CSS's religious exercise by forcing it to choose between curtailing its mission and approving relationships contrary to its beliefs.19 The policy is not generally applicable because the nondiscrimination provision reserves discretion to grant exceptions.20 This triggers strict scrutiny.21
The City failed to demonstrate a compelling interest in denying an exception, as accommodating CSS would not reduce the pool of foster parents and liability concerns remain speculative.22 The City's refusal to contract with CSS unless it agrees to certify same-sex couples therefore cannot survive strict scrutiny and violates the Free Exercise Clause.23
The City of Philadelphia violated the Free Exercise Clause.24
Related opinions on this issue
Joined by Justice Kavanaugh And Justice Breyer (in Part)
Justice Barrett agreed that the contract's provision for individualized exemptions triggers strict scrutiny under longstanding free-exercise jurisprudence.25 The City cannot satisfy strict scrutiny on the facts presented in this case.26 She noted that the textual and structural arguments against Smith are compelling and acknowledged the vigor of the ongoing debate over that precedent.27
Nevertheless she saw no need to overrule Smith in this case.28 All nine Justices agree that the City fails strict scrutiny.29 The presence of a discretionary exception mechanism allowed the outcome under existing precedent without resolving the broader question of whether Smith should be reconsidered.30
Whether the nondiscrimination provision in the City's standard foster-care contract is generally applicable?31
A law or contractual requirement is not generally applicable under the Free Exercise Clause if it creates a formal mechanism for individualized exemptions that invites the government to exercise discretion in granting or denying exceptions.32
No. The nondiscrimination provision in the City's standard foster-care contract reserves to the Commissioner or the Commissioner's designee the sole discretion to grant exceptions.33 This creates precisely the system of individualized governmental decisionmaking that renders the requirement not generally applicable.34 The policy is therefore subject to strict scrutiny under the Free Exercise Clause.35
The nondiscrimination provision in the City's standard foster-care contract is not generally applicable.36
Whether Philadelphia's Fair Practices Ordinance applies to CSS's activities in certifying foster parents?37
An ordinance regulating public accommodations applies only to providers whose goods, services, or privileges are extended or made available to the public in the ordinary sense, not to highly selective and individualized processes such as foster-parent certification.38
No. Certification as a foster parent involves a customized and selective assessment including background checks, medical exams, and an in-depth home study that takes months.39 The process considers mental and emotional adjustment and family relationships.40 This bears little resemblance to classic public accommodations such as hotels or restaurants.41 Therefore the ordinance does not reach CSS's certification activities.42
Philadelphia's Fair Practices Ordinance does not apply to CSS's activities in certifying foster parents.43
Whether the decision in Employment Division v. Smith should be overruled?44
The Court need not overrule Smith when the case can be resolved on the ground that the challenged policy is not generally applicable because it contains a formal mechanism for individualized exemptions.45
The decision in Employment Division v. Smith should not be overruled in this case.49
Related opinions on this issue
Justice Alito argued that Smith is fundamentally wrong and inconsistent with the ordinary meaning of the Free Exercise Clause.50 Smith has produced startling consequences for religious practice in multiple contexts, such as potential bans on wine for Catholic Mass or on kosher slaughter.51 He would overrule Smith because the City's demand that CSS either certify same-sex couples or forgo its work cannot be justified under stricter review.52
Reliance on the contractual exception provision provides no lasting guidance to other jurisdictions facing similar disputes, as the City could simply eliminate the never-used exemption power in future contracts.53
Justice Gorsuch contended that Smith is inconsistent with precedent and mistaken as to the Constitution's original meaning.54 Smith is also unworkable in practice.55 He would have overruled Smith to provide clarity rather than sidestepping the question through an interpretation of the contract and ordinance that was not argued below.56
That interpretation leaves substantial uncertainty for future cases because state courts or the City can alter the law or contract to evade the decision's protective effect.57