Supreme Court's Fulton Decision: a Ringing Endorsement of Religious Freedom | Opinion

The Supreme Court unanimously fulfilled the Constitution's promise of religious liberty yesterday in favor of "exemplary" foster mothers and a religious agency that affirms their faith, Catholic Social Services. In Fulton v. City of Philadelphia, the Court decided that a city could not exclude a religious foster care agency from public life simply because it disagrees with the agency's views on marriage. Every single justice agreed that the First Amendment's Free Exercise Clause protected these foster mothers and the 200-year-old agency—leaving them free to continue being, as the Court described them, "a point of light in the City's foster-care system."

The unanimous decision is a ringing endorsement of religious freedom. The Court made clear that the Constitution protects religious Americans who simply seek "to continue serving children in a manner consistent with [their] religious beliefs." Refusing to work with religious Americans unless they agree to contradict their faith violates the First Amendment. This ruling will allow religious foster care agencies to continue finding homes for children. Religious Americans remain free to serve the most vulnerable with integrity.

There's more. This is the first Supreme Court decision since 1963 to reject a government effort to provide case-by-case "exceptions" to everyone except religious people. Ever since the Supreme Court artificially narrowed the Free Exercise Clause in 1990's Employment Division v. Smith, Supreme Court victories for religious liberty were decided for other reasons, or under more protective federal laws (not the Constitution). Now, for the first time since Smith, the Supreme Court has explained that even the possibility of a law creating policy exceptions for some people, but not religious people, will trigger rigorous judicial review. The Court also rejected the argument that some skimpier version of the Free Exercise Clause applies when the government is "managing" conduct or contracting with a religious entity. Practically speaking, Fulton means the government will have little flexibility to restrict religious practices.

The U.S. Supreme Court
The U.S. Supreme Court is seen through security fencing on June 10, 2021 in Washington, DC. The Court is expected to release rulings later today. Kevin Dietsch/Getty Images

Fulton is also the first Free Exercise Clause case since Smith to detail the rigorous burden on any government entity seeking to restrict religious liberty. While other cases avoided detailing the standard, Fulton deployed the robust judicial review that the Supreme Court has been using under federal religious freedom laws since Smith. As the Court said today, general interests in "equality" or "dignity" don't trump religious freedom. "The First Amendment demands a more precise analysis" that "properly narrow[s]" the question of "whether [the government] has such an interest in denying a [particular religious plaintiff] an exception," the opinion said. And, "so long as the government can achieve its interests in a manner that does not burden religion, it must do so."

There's still more. Five justices made it expressly clear that Smith was wrongly decided. In this case, the city of Philadelphia couldn't even justify its exclusion under Smith, so "this case falls outside Smith." At the same time, most of the Court is now on record confirming what Justices Amy Coney Barrett and Brett Kavanaugh called the "compelling" "textual and structural" arguments against Smith. And as Justices Neil Gorsuch, Clarence Thomas and Samuel Alito noted, "not a single Justice has lifted a pen to defend" Smith. It is clear that Smith is not long for this world.

America needs heroic foster mothers. And those mothers depend on the support of an agency that affirms their faith. Their freedom has been protected—and with it, the love and support they provide to vulnerable children.

William J. Haun is counsel at the Becket Fund for Religious Liberty.

The views expressed in this article are the writer's own.