by Katherine Beck Johnson
June 17, 2021
Catholic Social Services’ (CSS) 9-0 victory before the Supreme Court today in Fulton v. City of Philadelphia, while unanimous, can’t be allowed to overshadow serious differences among the justices on how to approach religious liberty.
This case involved CSS’s ability to operate in accordance with their Catholic faith. The City of Philadelphia had pressured CSS to either give up the Church’s teaching on marriage and family or give up their ministry of finding children loving homes. CSS refused to go against its strongly-held religious belief that marriage is between a man and a woman. After years of litigation, the Supreme Court today held that Philadelphia violated the First Amendment by allowing secular but not religious exceptions to their fostering contracts, like the one held by CSS.
To be clear, this decision was a win. For now, CSS will be able to operate in accordance with its religious beliefs and continue placing children in most need. The organization will not be forced to shut its doors because it refuses to compromise its faith.
Unfortunately, the win was narrow, coming up short of a huge victory. The Supreme Court did the bare minimum to protect CSS and other faith adherents. It was only because Philadelphia had other exceptions, but not religious ones, that the Court found the city in violation of the First Amendment. As Justice Alito noted in his concurrence, the secular exceptions were essentially boilerplate language in the city’s contract that they did not enforce and will be very easy for them to delete—effectively leaving CSS with no protection. As Justice Alito said, “[t]his decision might as well be written on the dissolving paper sold in magic shops.”
The Court should have overturned Employment Division v. Smith, which held that a law is constitutional as long as it is generally applicable and does not target religion. Smith was wrong when it was decided, and it is wrong today. Justice Gorsuch was correct when he said, “[o]ne way or another, the majority seems determined to declare there is no “need” or “reason” to revisit Smith today. But tell that to CSS. Its litigation has already lasted years—and today’s (ir)resolution promises more of the same.”
The ever-growing demands from the Left and their radical gender ideology being imposed on more and more of America make it increasingly impossible for a person to live out their Christian faith while operating in the foster care and adoption space (or many other aspects of society). Evidently, the City of Philadelphia would rather children languish in the system without loving homes than allow CSS to operate in accordance with its faith. Catholics in Philadelphia and throughout our country deserve better than that—and are afforded more than that in our Constitution.
Although today’s opinion allows CSS to continue operating without compromising its faith, that likely won’t be the case for long. Soon, the Court will have to answer if a city can force a religious agency to violate its beliefs if no secular exceptions were provided. The answer is no, and that should have been the answer today. Justices Roberts, Barrett, Kavanaugh, Breyer, Sotomayor, and Kagan refused to answer this.
Today, Justices Alito, Thomas, and Gorsuch were the only members of the nation’s highest court who demonstrated awareness of the pressing need to revisit Smith and rightly protect religious adherents. Let us hope more justices join them in the future.