In a complex unanimous decision in the Philadelphia V Fulton case, the U.S. Supreme Court upheld Catholic Charities’ ability to continue to receive funding through the City of Philadelphia for child welfare services. The opinion that gathered all nine justices in varied configurations would appear to apply mainly to the specific circumstances in that contract and city.


Chief Justice John Roberts wrote the opinion, Justice Breyer, Justice Sotomayor, Justice Kagan, Justice Kavanaugh, and Justice Barrett, all concurring. Justice Amy Coney Barrett filed a concurring opinion that Justice Kavanaugh joined on, and Justice Breyer joined on that opinion except for the first paragraph. Justice Samuel Alito filed an opinion concurring in the judgment, and that was joined by Justice Thomas and Justice Gorsuch. Finally, Justice Neil Gorsuch filed an opinion concurring in the judgment, in which Justice Thomas and Justice Alito concurred.


The Roberts opinion stated, “As Philadelphia acknowledges, CSS has “long been a point of light in the City’s foster-care system.” Brief for City Respondents 1. 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.


In view of our conclusion that the actions of the City violate the Free Exercise Clause, we need not consider whether they also violate the Free Speech Clause.


The judgment of the United States Court of Appeals for the Third Circuit is reversed, and the case is remanded for further proceedings consistent with this opinion.”


Justice Roberts seemed to tie some of his opinion to the ability of the City to grant exceptions to child welfare policy even if exceptions have not been issued.  As a result, a significant earlier U.S Supreme Court ruling (Employment Division v Smith) did not apply.  Conservative Samuel Alito’s opinion stretched to 77 pages and argued that the Court should have taken the opportunity to overturn the 1990 Employment Division v Smith that outlined how a broad law applied to all are not unconstitutional simply because they impact on religious beliefs or practice. Barrett and Kavanaugh agreed with Roberts opinion that the Smith opinion should not be reviewed solely based on this case.


The decision wove through four opinions may not have changed current law except the specific actions in Philadelphia. Some of the Court’s conservative members seemed to feel the unanimous decision by Roberts did not go far enough in rejecting the lower court ruling. Justice Alito complained that “The decision might as well be written on the dissolving paper sold in magic shops.”


Groups that had supported the City’s side (including CWLA) were measured in their response, disappointed in the ruling but positive that it was not ruling broadly in favor of discrimination.


The ACLU issued a statement that said in part, “We are relieved that the court did not recognize a license to discriminate based on religious beliefs… Opponents of LGBTQ equality have been seeking to undo hard-won non-discrimination protections by asking the court to establish a constitutional right to opt out of such laws when discrimination is motivated by religious beliefs. This is the second time in four years that the court has declined to do so. This is good news for LGBTQ people and for everyone who depends on the protections of non-discrimination laws.”

The Human Rights Campaign said that “In a 9-0 decision, the Court ruled that governments can enforce nondiscrimination laws as long as they do so neutrally, but that the city of Philadelphia was not neutral in its application of its nondiscrimination laws.”