What the 9-0 Fulton decision means for foster care and faith agencies

Nine justices agreeing on anything that touches religion and sexuality is a rarer sight than a snowstorm in July. In June 2021 it happened. The Supreme Court voted 9-0 for a Catholic foster care agency in Philadelphia, and half the commentators on the right declared total victory while half the commentators on the left declared that nothing had changed. Both groups were reading the headline and skipping the opinion.

I want to do what almost nobody does, which is to read the thing. The result is a real win for faith-based agencies and for the children they serve. But the unanimity was bought with narrow reasoning, and the narrowness is the whole story. A conservative who wants to keep this victory has to understand exactly what the Court said, what it refused to say, and what that means for the next fight.

The facts, in order

Philadelphia, like every city, has children who cannot safely live at home. The city does not recruit and train all the foster families itself. It contracts with private agencies that find, screen and certify the families, and the city's Department of Human Services places children with them. Catholic Social Services, an arm of the Archdiocese of Philadelphia, had been in that work for generations.

In March 2018 a newspaper story reported that two private agencies, Catholic Social Services and Bethany Christian Services, would not certify same-sex couples as foster parents. The city reacted. It stopped sending new foster children to those agencies and told Catholic Social Services that the freeze would continue unless the agency agreed to certify same-sex couples. The agency's position was that, according to Catholic teaching on marriage, it could not write the endorsement a certification requires for a same-sex couple. The agency said it would gladly refer such a couple to any of the other agencies the city worked with. And here is a fact that deserves a place in every retelling: no same-sex couple had ever asked Catholic Social Services for certification. There was no turned-away couple in the record. The dispute was over a policy, not an injured party.

Sharonell Fulton, a foster mother who had cared for more than forty children over a quarter century, joined the agency in suing, along with other foster parents. They argued that the city's freeze violated the Free Exercise Clause of the First Amendment. They lost in the lower courts and won, 9-0, at the Supreme Court. The Court's decision came on June 17, 2021, and Chief Justice Roberts wrote the opinion.

The legal test, and the clause that sank the city

To see why the opinion is shaped the way it is, you need the rule it was working inside. In 1990 the Court decided Employment Division v. Smith, a case about two men fired for using peyote in a religious ritual. Justice Scalia wrote that a law which is neutral and generally applicable does not violate the Free Exercise Clause even if it burdens a religious practice. Under Smith, religious believers lose against neutral rules that apply to everyone. They win only when the government targets religion or when the rule is not truly general.

Congress reacted to Smith by passing the Religious Freedom Restoration Act in 1993 with overwhelming bipartisan support, which restores a stricter test against the federal government. The story of that law is told in How 97 senators and a voice vote undid a Supreme Court decision. But RFRA binds only the federal government. For a city like Philadelphia, Smith governs.

So how does a faith agency win under Smith? Here is where the contract matters. Philadelphia's standard foster care contract contained a nondiscrimination clause. It also contained a provision that allowed the city's Commissioner of Human Services to grant an exception to that clause, at the Commissioner's discretion. The city said in court that it had never used the exception and did not intend to give one to Catholic Social Services. That did not matter. The Court held that a rule that gives a government official the power to grant individual exemptions is not a generally applicable rule. If the official can say yes for some and no for others, then the question becomes why the official says no to the religious applicant, and the government has to justify that under the toughest standard of constitutional review, strict scrutiny.

The city could not. It argued that its interest in preventing discrimination against prospective foster parents and in protecting its own policy was compelling. The Court answered that the question is not whether the city has an interest in the abstract but whether it has a compelling interest in denying this specific exception to this specific agency. The city had a ready way to make room for Catholic Social Services, and the agency would not hurt anyone: the city could keep working with every other agency, and any couple could still go elsewhere. The Court also pointed out that, under Pennsylvania law and the city's ordinance, certification by a foster agency was not a "public accommodation," which took away the city's claim that state law demanded what it demanded.

That is the whole holding. The city's own exception clause meant the rule was not general; the exclusion of this agency could not survive strict scrutiny; therefore the city's freeze violated the First Amendment.

What the Court refused to do

Now the part that explains the 9-0. The agency and a number of friends of the Court asked for much more. They wanted the justices to overrule Smith and hold that when a law substantially burdens religious exercise, the government must always show a compelling reason. A majority of the justices was not willing to go that far in this case, so the opinion did not.

Instead the Court said it did not need to revisit Smith because the exception clause already took this contract out of Smith's protected zone. That is why liberal and conservative justices could sign the same opinion: it left Smith standing.

The concurrences show how deep the disagreement remained. Justice Barrett, joined by Justice Kavanaugh and, in part, by Justice Breyer, wrote that the case for overruling Smith was a serious one, since Smith's reading of the Free Exercise Clause is hard to square with the text and history. But she asked what would take its place. If strict scrutiny is the answer for every burden, she wondered, what about the many scenarios from schools to zoning to employment where religious claimants would be asking for exemptions? She said she would not overrule Smith without a clear answer to what the new rule would be, and noted that scholars had offered several different ones.

Justice Alito, joined by Justices Thomas and Gorsuch, wrote a long concurrence in the judgment. He would have overruled Smith now, and he criticized the majority for resting the decision on a ground, the contract provision, that the city could wipe away by rewriting the clause. Justice Gorsuch wrote separately, joined by Thomas and Alito, to say the same thing in other words and to criticize the Court for leaving the question open once again.

In plain English: nine justices agreed on the result, three would have gone much further, two or three more (Barrett and Kavanaugh, with Breyer in part) were open to going further some day, and the opinion of the Court deliberately went no further than the facts required.

The strongest argument on the other side

Let me state the opposing case at its best, because it is a good one.

The city's lawyers would say this. A city that pays an agency to perform a government function, finding homes for children in state custody, is entitled to insist that the agency serve all qualified families. The families in question are qualified couples who want to open their homes to a child. Every couple turned away shrinks the pool of homes. Moreover, a same-sex couple is entitled to be treated by an agent of the city as an equal citizen, and it is no answer to say they can walk down the street to another agency. And once a government grants an exemption to one agency for religious reasons, where does it stop?

Here is the strongest version of the case, and here is why it falls short on these facts.

1. The pool argument cuts the other way. The city's position asked it to refuse the services of an agency that had been recruiting and supporting foster families for generations. If the goal is more homes for more children, throwing out a veteran provider shrinks the pool. A foster parent does not become available by closing the agency that recruited her. Fewer qualified providers, and a city that takes a freeze on referrals as the price of a policy dispute, does not make a child's next night any safer.
2. There was no injured couple. Nobody had been denied. The city was punishing a hypothetical in order to enforce a principle. When a government acts against a long-established charity over a harm that has not happened, the burden on it ought to be heavy.
3. The "equal citizen" point is a serious value claim, and I will not pretend otherwise. But it is a value claim about what the city should require, and the city's own contract recognized that exceptions were possible. A government that writes its own exception clause cannot claim that an exception would be unthinkable.
4. As for the slippery slope, the Court's opinion is narrower than the worry suggests. It did not hold that every agency can refuse every family for religious reasons. It held that this city, with this contract, had not justified refusing this exception.

Why the narrow reasoning cuts both ways

Now the honest part, which conservative commentators too often skip. Because the Court rested its decision on the discretionary exception clause, the city had an obvious fix: delete the clause. And that is exactly what the Court's own logic suggests a city could try. A rule with no exceptions is more likely to count as generally applicable under Smith, and a city that wanted to push the same policy could, in principle, write a contract with no escape valve and see whether it survives.

That is why the win is a real one for the agencies in the middle of the fight, and a thinner one as precedent for the long term. In practical terms the lesson for people who care about this has three parts.

• State law matters more than ever. Many states have passed their own religious freedom statutes, and some have passed laws specifically protecting faith-based child placement agencies. Look up whether your state has one by checking your legislature's website for "religious freedom restoration" and "child placing agency" in the statute index.
• Contract language matters. Agencies that work with governments should read the nondiscrimination clauses, the exception provisions and the process for requesting an accommodation, before a dispute starts and not after.
• The Smith question is open. Three justices want it overruled, at least two more are open to it, and a future case could bring it back. The standard for how courts treat religious claimants may change.

If you want the wider map of how religious liberty claims have fared since, From Hobby Lobby to the Little Sisters, the long fight over one mandate covers the mandate fight, and a baker, a web designer and the line between customers and messages covers a different line: when a business owner's message, and not just service, is at stake.

The children in the room

All of this law can make it easy to lose sight of the people the system exists for. A child in foster care did not choose any of it. What that child needs, on a given night, is a safe bed and an adult who has been vetted and trained and who will show up. The system that supplies those homes is a patchwork of public caseworkers and private agencies, many of them faith-based, and it has a standing shortage of qualified families.

I will say this plainly, because it is where common sense lives. If you were designing a foster care system from scratch and your priority was children, you would want more agencies, more recruiters, more churches and synagogues and mosques encouraging their members to open their homes, and more ways in. You would not choose to turn away one of the oldest recruiters in town in order to win an argument about a hypothetical. Whatever you think of the underlying moral dispute about marriage, a policy that reduces the number of available providers has to answer to the child.

Two other posts take the practical side. who runs foster care, who pays for it and what the 1997 law changed explains who is responsible for what in the system, and ten steps from a church pew to a licensed foster or adoptive home lays out the path for anyone ready to take the step.

What it does not tell us

A few cautions, to keep this post honest.

• Fulton did not decide that faith-based agencies can never be required to follow a nondiscrimination rule. It decided that this city, with this exception clause, could not justify what it did.
• It did not rule on what a state may require when it has no exception clause.
• It did not address the distinct question of the ministerial exception, which protects a religious group's choice of its own leaders and is explained in why the government cannot tell a church who its ministers are.
• It left the Smith rule where it found it.

The bottom line

• Fulton was a unanimous win for a Catholic foster agency, but the Court got to 9-0 by deciding the case on the city's discretionary exception clause and leaving Smith standing.
• Three justices would have overruled Smith now and others are open to it later, so the long-term protection for religious claimants is not settled.
• If you work with a faith-based agency, or serve on its board, read its government contract for the nondiscrimination and exception clauses, and ask your state legislator whether your state protects child placement agencies by statute.
• If you care about the children, the best answer to this fight is more qualified families. Ask your pastor or your congregation whether they would support members who want to foster, and find out how licensing works in your county.
• When someone tells you the case changed nothing, or changed everything, ask them to name the holding. Then read the opinion yourself.