In Philadelphia (as in most cities), the foster care system is dependent on private organizations certifying families that can take foster children.  The City of Philadelphia tried to force Catholic Social Services (CSS) to certify homes with same-sex couples.  When CSS said its faith prevented it from concluding that such homes could be in a child's best interest, Philadelphia "fired" it.  CSS sued but lost at both the district and appellate court levels.  In Fulton v. Philadelphia, though, a unanimous Supreme Court held that Philadelphia had violated CSS's First Amendment rights.

Nothing that CSS did deprived foster children of access to safe homes, including same-sex homes or homes with a member of the LGBT orientation:

CSS does not object to certifying gay or lesbian individuals as single foster parents or to placing gay and lesbian children. No same-sex couple has ever sought certification from CSS. If one did, CSS would direct the couple to one of the more than 20 other agencies in the City, all of which currently certify same-sex couples. For over 50 years, CSS successfully contracted with the City to provide foster care services while holding to these beliefs.

However, when a newspaper article revealed that CSS would not certify same-sex couples, the City Council "called for an investigation, saying that the City had 'laws in place to protect its people from discrimination that occurs under the guise of religious freedom.'"  More formally, "The City later explained that the refusal of CSS to certify same-sex couples violated a non-discrimination provision in its contract with the City as well as the non-discrimination requirements of the citywide Fair Practices Ordinance."

CSS sued, alleging "that the referral freeze violated the Free Exercise and Free Speech Clauses of the First Amendment."  Both the trial court and the appellate court ruled against CSS because they believed that the law was facially neutral and generally applicable under Employment Division, Department of Human Resources of Oregon v. Smith, 494 U.S. 872 (1990).  Every certifying organization had to certify LGBT couples, so those that didn't couldn't complain.

The Court opened by saying the city's actions discriminated against CSS — but that is allowable up to a point:

The Free Exercise Clause of the First Amendment, applicable to the States under the Fourteenth Amendment, provides that "Congress shall make no law . . . prohibiting the free exercise" of religion. As an initial matter, it is plain that the City's actions have burdened CSS's religious exercise by putting it to the choice of curtailing its mission or approving relationships inconsistent with its beliefs. ... Our task is to decide whether the burden the City has placed on the religious exercise of CSS is constitutionally permissible.

CSS, Justice Alito, and Justice Gorsuch wanted to overrule the Smith case (above) entirely.  However, the Court didn't need to look that far afield.  "This case falls outside Smith because the City has burdened the religious exercise of CSS through policies that do not meet the requirement of being neutral and generally applicable."

The Court zeroed in on Philadelphia having violated the "generally applicable" rule.  "A law is not generally applicable if it 'invite[s]' the government to consider the particular reasons for a person's conduct by providing 'a mechanism for individualized exemptions.'"  In other words, if an ostensibly general standard nevertheless allows the government to treat people differently on a case-by-case basis because of religious considerations, it fails to be generally applicable.

The Court's example was the case of a Seventh-Day Adventist who couldn't find a job that didn't require her to work on Saturdays.  When she applied for unemployment, the State denied her because she had failed to accept available and suitable work.  The mere fact that the state could make case-specific exemptions causing religious hardship showed that the law was not generally applicable.

A law also fails the general applicability test if it prohibits religious conduct while allowing the same behavior in a non-religious context.  Thus, in Church of Lukumi Babalu Aye, Inc. v. Hialeah, the city forbade Santería's animal sacrifice ostensibly because disposing of the animal carcasses posed a health risk.  However, Hialeah did nothing to control how hunters were disposing of animal carcasses.

In CSS's case, the relevant municipal statute held that foster care providers could not reject a family based upon a couple's sexual orientation unless the commissioner, in his discretion, granted an exception.  That exception — which the city swore would never apply to CSS — violated the general applicability rule.

The city made several more arguments that the Court batted down.  On this one, CSS and religion were the clear winners.  Not only is this a victory for religious rights and for the Constitution itself (as written), but the Court's unanimity may matter, given Jonathan Turley's suggestion that the Court is deliberately issuing unanimous decisions to push back against the Democrat plan to keep adding justices until there's an activist majority.

Image: United States Supreme Court by dbking.  CC BY 2.0.

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