Unanimous Supreme Court Upholds Religious Freedom in Foster Care


The U.S. Supreme Court building, Wikimedia Commons,

The Supreme Court delivered a historic unanimous victory
for religious freedom on Thursday, ruling that the City of Philadelphia
violated the First Amendment by refusing to contract with Catholic Social
Services (CSS) because it would not place children with same-sex couples. The
Court ruled that Philadelphia cannot discriminate against religious foster care
agencies based on their fundamental beliefs about marriage and sexuality.

“CSS 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. The
refusal of Philadelphia to contract with CSS for the provision of foster care
services unless it agrees to certify same-sex couples as foster parents cannot
survive strict scrutiny, and violates the First Amendment,” Chief Justice John
Roberts wrote in the majority opinion in Fulton v. Philadelphia (2021).

Roberts, who has disappointed many conservatives in the
past, wrote the opinion, and Justices Stephen Breyer, Sonia Sotomayor, Elena
Kagan, Brett Kavanaugh, and Amy Coney Barrett joined. Barrett wrote a
concurring opinion, which Kavanaugh joined and Breyer mostly joined. Justice
Samuel Alito filed a concurring opinion, which Justices Clarence Thomas and
Neil Gorsuch joined. Gorsuch also filed a concurring opinion, which Thomas and
Alito joined.

While the ruling constitutes a major victory for
religious freedom, the Court did not strike down the horrendous precedent 
Division v. Smith (1990), in which the Court held that a neutral and
generally applicable law typically does not violate the Free Exercise Clause.
Barrett’s opinion called on the Court to strike 
Smith, but Roberts
and the liberal justices may have hesitated to find in favor of CSS had Barrett
and others insisted on overturning 

The Court ruled that Philadelphia’s requirement for CSS
to place children with same-sex couples did not fall under the public
accommodations law as the city claimed. “Certification as a foster parent is
not readily accessible to the public; the process involves a customized and
selective assessment that bears little resemblance to staying in a hotel,
eating at a restaurant, or riding a bus. The District Court’s contrary
conclusion did not take into account the uniquely selective nature of foster
care certification,” Roberts argued.

While Fulton v. Philadelphia did not
deliver the key religious freedom blow to overly restrictive LGBT public
accommodations laws that many conservatives sought, it did defend the
fundamental right of religious liberty for foster care providers, setting an
important precedent for future cases.

“Today’s decision prohibits government sanctioned
discrimination against religious adoption and foster care agencies because of
their beliefs about marriage,” Ashley McGuire, senior fellow at The
Catholic Association, said in a statement.

“Catholic adoption agencies have been placing vulnerable
children in loving homes for centuries without discriminating based on race,
religion, sex, or disability. But those agencies have become the latest victim
of woke culture as activists seek to push them out of the adoption and foster
care space because of their religious values. Those efforts are rooted in an
anti-Catholic bigotry that refuses to tolerate pluralistic views and beliefs,”
McGuire explained. “Thankfully the Supreme Court has put an end to efforts to
close down and cancel the faith-based agencies whose work on behalf of
marginalized children is invaluable.”

“Punishing religious organizations for acting
consistently with their sincerely held religious beliefs is wrong,” Kelly
Shackelford, president and CEO of First Liberty Institute, said in a statement.
“The Court ensured that religious adoption providers can continue their
centuries-old work serving families and children without suffering government
discrimination because they believe that the best home for a child includes a
mother and father.  This is a tremendous victory for religious liberty.”

“The government can’t single out people of certain
beliefs to punish, sideline, or discriminate against them,” Kristen Waggoner,
general counsel at Alliance Defending Freedom (ADF), said in a statement.
“We’re grateful for the good decision today consistent with that principle. And
so now is the perfect time for the high court to address a religious freedom
question that has been pending for years in Arlene’s Flowers, the case of Washington floral
artist Barronelle Stutzman. She has waited far too long for justice—now is her

“As the Supreme Court wrote in its Masterpiece
Cakeshop decision, which I argued on behalf of cake artist Jack
Phillips, it is not ‘the role of the State or its officials to prescribe what
shall be offensive.’ Despite that, Jack has been sued twice more, Barronelle
continues to live with the threat of losing her business and life savings, and
numerous others exist with the looming possibility of unconstitutional
government coercion and punishment, all because they won’t act contrary to
their faith and conscience,” she added. “The Supreme Court’s intervention is
sorely needed to end this abuse of power.”

Philadelphia’s CSS is far from the only Christian
adoption or foster care agency facing the ire of the LGBT activists. Many activists have used similar public accommodations
laws to try to force their beliefs about sexuality and gender on religious
organizations. This key Court victory should protect Christian adoption and
foster care agencies, and perhaps other similarly situated religious

Fulton v. Philadelphia stands
as a rebuke to Democrats who have been fighting against religious freedom in
this sphere. Even the liberal justices upheld CSS’s religious freedom against
Philadelphia’s attack.

This unanimous decision should send President Joe Biden a
clear message: packing the Supreme Court with liberal justices like Breyer,
Sotomayor, and Kagan won’t necessarily prevent the Court from upholding
religious freedom.


editor of PJ Media, Tyler O’Neil is an author and conservative commentator. He
has written for numerous publications, including The Christian Post, National
Review, The Washington Free Beacon, The Daily Signal, AEI’s Values &
Capitalism, and the Colson Center’s Breakpoint. He enjoys Indian food, board
games, and talking ceaselessly about politics, religion, and culture. He has
appeared on Fox News’ “Tucker Carlson Tonight.” He is the author
of Making Hate Pay: The Corruption of the
Southern Poverty Law Center
. Follow him on Twitter at @Tyler2ONeil.



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