It's our Constitutional Right to be Jerks to teh Gays - Fulton v. City of Philadelphia

The Supreme Court, including the newest member Amy Coney Barrett, heard oral arguments in Fulton v. City of Philadelphia today. It’s a complicated case, but at its most basic, the question is whether the City of Philadelphia can refuse to give money to a Catholic charity that does foster care work for them, because the Catholic charity discriminates on the basis of sexual orientation (read as "because of their gayness, gays can’t be suitable foster parents). This is yet another case where the ever-victimized religious right wields the Free Exercise Clause as a sword, claiming it is their Constitutional Rights to discriminate against gay people and attempt to punish them for being gay.

One important aspect of the case is that it gives the Supreme Court the chance to overrule/severely limit Employment Division v. Smith, a Supreme Court case that established that the free exercise clause does not require religious exemptions from laws that are “neutral and generally applicable”. (As an aside, it is pretty telling about the last 30 years in America and the Supreme Court that the Smith case was written by conservative Justice Scalia, while, now, the conservatives on the court are even further right and want to overrule it for a more religious deferment test). Alito and Kavanaugh are clearly interested in overruling/severely limiting Smith by holding that if the law includes a single secular exception (I’m a bit stunned since there doesn’t appear to be one in the Fulton case), then it must meet strict scrutiny if it limits a religious belief.

One additional potential outcome is that the conservative court will no longer consider (or give it merely lip-service) the harm allowing a special privilege to religious beliefs (I’m still stumped as to why “you sin, therefore we should be able to be assholes to you” is a religious belief) would do to the States’ (and society’s) goals of equality, freedom, and the proper care of children. There are many studies (you can start with HRC’s report), that indicate that allowing discrimination on the basis of sexual orientation will do severe damage to the foster children and the goals of providing them safe and healthy homes. And I could find no studies (I should say none that haven’t been debunked as garbage) that find same sex parents are worse than heterosexual parents because of their sexual orientation.

The statement of the case raises other issues too: " Whether free exercise plaintiffs can only succeed by proving a particular type of discrimination claim — namely that the government would allow the same conduct by someone who held different religious views — as two circuits have held, or whether courts must consider other evidence that a law is not neutral and generally applicable, as six circuits have held; (2) whether Employment Division v. Smith should be revisited; and (3) whether the government violates the First Amendment by conditioning a religious agency’s ability to participate in the foster care system on taking actions and making statements that directly contradict the agency’s religious beliefs."

This case, and the cases that will inevitably come if they overrule Smith and/or find for the gay haters, illustrates one of the major reasons the Republicans fought so hard, showed such dishonor, and lied so much to get more federal judges that are tuned to their side appointed to the bench. So they can roll back the protections we’ve enjoyed for the last 60 years or so, and undo the judiciary as a bullwark against the tyranny of the majority. It’s gonna get worse before it gets better.

TLDR: The Fulton v. Philly case will likely, given this court, strengthen the use of the free exercise clause as a weapon against homosexuals. And that is bad. And, in this particular case, will cause direct harm to not just potential homosexual parents, but to the children who need their help.

This is just begging for the Supreme Court to provide a standard - possibly the test explicitly given in issue #1. There’s no way this question is being answered yes/no in the general sense.

I think, trivially, Smith should be revisited. The fact is that we have a 6-2 circuit split based on interpretation of that case. Granting certiorari pretty much means it is being revisited. At the very least a clarification is in order.

As for my personal opinion, I will have to look into the details. I expect to find that a same-sex couple asked the Catholic foster care agency to endorse them and was turned down, in violation of some nondiscrimination ordinance and/or provision in their contract with the city.


Having now read the briefs, I would hold,

  1. That the government must further a compelling interest when a regulation only affects religiously motivated conduct.
  2. That this opinion is consistent with Smith and Lukumi.
  3. That in this particular case,
    a. the City of Philadelphia has compelling interests (equal protection of the laws and equal access to government services), and
    b. absent evidence to the contrary, the new foster contract furthering those interests is narrowly tailored (the City has not undermined its stated interests by eg: providing exemptions for agencies to discriminate against same-sex couples).


Got the SCOTUS ruling just now. Here’s the text of the opinion. It’s 110 pages in total, so it may take awhile to digest.

They found in favor of the Catholic Charity.

It was a unanimous decision so it most likely have been the same even without McConnell’s court packing. I don’t know how expansive the decision is. They seem to make a point of the fact that Gays are able to foster children from other organizations and that the charity hadn’t actually been approached by prospective gay couples (presumably because they knew that they would be rejected.)

The decision was unanimous. The OP brings up new member Amy Coney Barrett in the very first sentence in order to paint this as another bad ruling from the conservatives on the court, but it was agreed to by everyone on the court, Breyer, Sotomayer, Kagan, everyone.

Keep that in mind while venting your outrage at a decision you don’t agree with, all of the justices agreed with it.

Well, the original post was back on November 4, when oral arguments were being made. The ruling was just released, and OP just updated the thread, and noted they were digesting the text of the opinion. OP hasn’t actually ventured an opinion on the ruling, much less vented any outrage.

Short version: Ruling for Catholic Charities. As there could be discretionary exemptions to the Philly policy, one should have been given in this case. A fairly odd ruling, but one likely initiated by Roberts to get a unanimous court.

This is a horribly simplistic view of this (or any, really) Supreme Court opinion. The very limited ruling (only 15 pages of the 110 page opinion) that providing an exception to a generally applicable rule can negate the “neutrality” required to get analysis under the Smith precedent was unanimous. That very limited ruling is not a huge issue for me; it dodged all of the concerns I mentioned in the OP.

My concern about the Court overruling Smith (which Barrett, Kavanaugh, Alito and Gorsuch seemingly support from their opinions) wasn’t reached by the majority. Neither was the issue of the validity of denying same sex couples the ability to foster children.

So the Supreme Court’s opinion avoided ruling on the issues I was worried about. Instead they opted for a very limited ruling and kept Smith as precedential. For how long, we will see.

Thomas joined Alito’s opinion, so I count five in support of overruling Smith.

I agree with you that they didn’t go that far, but it looks like the votes are there in the right case. Probably a nudge to Philly that if it attempts just to remove discretionary exemptions from the policy, and thereby undercut the Court’s punt, then they risk what is coming.

I don’t think there are 5 votes to overturn Employment Division v. Smith or I think they’d have voted that way, I think other than the three who were clearly in favor of overturning Smith, the other two conservatives aren’t solid in that position and probably wouldn’t vote to overturn it in its entirety.

In my view, the textual and
structural arguments against Smith are more compelling.
As a matter of text and structure, it is difficult to see why
the Free Exercise Clause—lone among the First Amendment freedoms—offers nothing more than protection from

That’s Barrett and Kavanaugh. Seems doubtful they like Smith. Breyer didn’t join that part of the opinion but he previous stated his desire to reexamine Smith in City of Boerne v. Flores, 521 U. S. 507 (1997).

I count at least five, if not six. Again, it was probably Roberts that convinced Barrett and Kavanaugh not to issue a divided 5-4 opinion, but of course my guess is as good as yours.

Before I can agree with the majority decision I would need to see evidence of the City actually granting exemptions that undermine its purported goal of providing equal protections and treatment under the law.

That leaves the interest of the City in the equal treatment
of prospective foster parents and foster children. We do not
doubt that this interest is a weighty one, for “[o]ur society
has come to the recognition that gay persons and gay cou-
ples cannot be treated as social outcasts or as inferior in
dignity and worth.” Masterpiece Cakeshop, 584 U. S., at ___
(slip op., at 9). On the facts of this case, however, this in-
terest cannot justify denying CSS an exception for its reli-
gious exercise. The creation of a system of exceptions under
the contract undermines the City’s contention that its non-
discrimination policies can brook no departures. See
Lukumi, 508 U. S., at 546–547. The City offers no compel-
ling reason why it has a particular interest in denying an
exception to CSS while making them available to others.

I’ve bolded the part that I don’t understand.

The City must provide a compelling reason to deny an exception to CSS while making exceptions available for others. That’s fine, and I agree.

The City says granting an exemption to an organization which discriminates against gay persons and couples undermines its compelling interest in providing equal protections and treatment to all. This explanation is satisfying to me and, in my opinion, shifts the burden of proof back to CSS, and the court which rules in its favor.

Where has the city actually made an exemption that undermines its stated interest? It hasn’t. “[T]the Commissioner has never granted one.” p.10. The mere possibility of individualized exceptions cannot simultaneously trigger and disqualify strict scrutiny. The court may as well say, ‘if your law allows for individualized exceptions but you do not actually give out a religious exception, you violate the constitution.’

I can imagine a situation where the law requires prosecutors prosecute all murder cases unless the suspect applies for, and some named officer grants, an exemption. One suspect applies for a religious exemption. It would seem, according to the Fulton court’s logic, that the exemption must be granted as a matter of law.

That is unacceptable to me.


Cite check. Quote from Lukumi,

The proffered objectives are not pursued with respect to analogous nonreligious conduct, and those interests could be achieved by narrower ordinances that burdened religion to a far lesser degree. […] As we show above, see supra, at 543-546, the ordinances are underinclusive to a substantial extent with respect to each of the interests that respondent has asserted, and it is only conduct motivated by religious conviction that bears the weight of the governmental restrictions.

Looking at 543-546,

Respondent claims that Ordinances 87-40, 87-52, and 87-71 advance two interests: protecting the public health and preventing cruelty to animals. The ordinances are underinclusive for those ends. They fail to prohibit nonreligious conduct that endangers these interests in a similar or greater degree than Santeria sacrifice does. The underinclusion is substantial, not inconsequential. Despite the city’s proffered interest in preventing cruelty to animals, the ordinances are drafted with care to forbid few killings but those occasioned by religious sacrifice. Many types of animal deaths or kills for nonreligious reasons are either not prohibited or approved by express provision. For example, fishing-which occurs in Hialeah, see A. Khedouri & F. Khedouri, South Florida Inside Out 57 (1991)-is legal. Extermination of mice and rats within a home is also permitted. Florida law incorporated by Ordinance 87-40 sanctions euthanasia of “stray, neglected, abandoned, or unwanted animals,” Fla. Stat. § 828.058 (1987); destruction of animals judicially removed from their owners “for humanitarian reasons” or when the animal “is of no commercial value,” § 828.073(4)(c)(2); the infliction of pain or suffering “in the interest of medical science,” § 828.02; the placing of poison in one’s yard or enclosure, § 828.08; and the use of a live animal “to pursue or take wildlife or to participate in any hunting,” § 828.122(6)(b), and “to hunt wild hogs,” § 828.122(6)(e).

The Lukemi case involed a law (‘no animal sacrifices’) that actually failed to prohibit much worse conduct, with regard to the claimed state interest. The Fulton case involves a City which has not actually, to my knowledge, failed to prohibit any worse conduct with regard to the claimed state interest.


I agree that it is odd. But the law enacted by Philly says that an exception may be granted to the non-discrimination policy. And because it may be, then the law is not generally applicable, and a religious group must get an exception because others may. Even though, as you said, the city never has given an exception.

That’s certainly an extension of prior case law, but what Roberts is saying is that you cannot claim that you interest in protecting gays is of the utmost importance and allows no exceptions, when the very law allows exceptions.

The strange part is if the law did not have this exception provision, then under Smith, the CCS would be legally barred. So, in essence, you have fewer Constitutional rights if the government passes a harsher law? That makes zero sense.

I guess the argument is that when the lawmakers enacted this statute, by providing for an exception procedure, they recognized that in at least some cases it would be appropriate for organizations that discriminated against gays to be permitted in foster care placement. And because it is permissible for some people to be excepted, then a religious belief must be entitled to the same.

But, I agree with you…the same what? As there are no standards for the exception, just the unfettered discretion of the bureaucrat, there is nothing to compare CCS’s burden with any similarly situated organization…so a very odd decision.

As as aside, this is simple judicial arrogance. The City of Philadelphia, funded by taxpayers, and the CCS, funded by charitable donations, have litigated this case, probably 6 figures a piece, to get an answer to this question from the Supreme Court. The Court accepted cert on that question.

Now, they reach a nothing decision. Philly will repeal the exception. CCS will sue them again, lose in the lower courts and present the same question to the Court again in a few years’ time and 6 more figures of lawyers getting paid, and for what real reason?

This is no ordinary “exception” statute. It’s part of the contract an orginization must sign to receive referrals, aka. you have to sign this contract before the city sends you kids for you to find foster parents for.

The section 3.21 that allows a commissioner to grant an exception is the one that says you are not allowed to reject the kids we send your way for “any” reason so long as the profile is consistent with the law. On the basis of sexual orientation is part of a list that explicitly includes the words, “for any other reason”. It is a misinterpretation to look at this as an exception to a non-discrimination statute, or undermining the city’s interest in equal protection. There are a million good reasons to reject a referral from the city, for example, the safety of the foster parents if the referred kid has a history of violence.


I see your point and that, frankly, is probably the better read that the one the Supreme Court gave. IOW, you can’t reject for these enumerated reasons. Period. You can’t reject for any other reason unless an exception is given.

I can also see the other read, but yours is better.

Not exactly. My read is just, you can’t reject for any reason unless an exception is given. As written the enumeration is fluff.

Take the Court’s argument, which I quoted before, and apply it to this “law”:

Provider shall not reject a child or family […] for Services based upon […] any […] reason if the profiles of such child or family are consistent with Applicable Law, […] unless an exception is granted by the Commissioner or the Commissioner’s designee, in his/her sole discretion.

Remember the exception has never actually been granted.

Hence my argument to absurdity where a prosecutor has to make an exception for prosecuting murderers.