Chief Justice John Roberts’ skills as a judicial magician are well known, but his performance in Thursday’s Fulton v. Philadelphia may be his finest trick yet. Somehow, Roberts was able to create a six-justice majority to hold that Philadelphia violated the Constitution when it ended its contract with a foster care agency that turns away against same-sex couples. He united the three liberals together with Justice Amy Coney Barrett and Brett Kavanaugh in support of a taxpayer-funded agency’s ability to discriminate against gay people. At the same time, Roberts affirmed that preventing anti-gay discrimination is a compelling state interest. And, to top it all off, he upheld a landmark precedent that a supermajority of the court apparently wants to overturn. We may never see a more masterful display of constitutional prestidigitation.
Fulton revolves around Catholic Social Services, or CSS, which screens prospective foster care parents pursuant to a longstanding contract with Philadelphia. In 2018, CSS announced that it would not work with same-sex couples because it opposed same-sex marriage. The city responded by declining to renew the agency’s contract to screen prospective parents, though it allowed CSS to continue participating in other parts of the foster care system. City officials determined that CSS would shrink the pool of foster parents by rejecting otherwise qualified same-sex couples, ultimately harming children by delaying their placement in loving homes.
CSS sued, alleging a violation of its First Amendment right to free exercise of religion. But the agency faced a problem. In 1990’s Employment Division v. Smith, the Supreme Court held “neutral and generally applicable” laws comply with free exercise as long as they don’t target religious conduct. And Philadelphia’s non-discrimination rules would seem to fit into that category. So CSS argued that the Supreme Court should overturn Smith and apply heightened scrutiny to any law that burdens religion, even incidentally. As a backup, it also claimed that Philadelphia’s law was not actually neutral because it expressed hostility to the agency’s beliefs, thereby targeting religion.
While Roberts sided with CSS, his opinion for the court adopted neither of the agency’s legal rationales. Instead, he determined that Philadelphia’s standard foster care contract, which bars anti-LGBTQ discrimination, is not “generally applicable” under Smith. Roberts noted that the contract allows the Department of Human Services commissioner to grant individual exemptions (that is, allow discrimination) at their “sole discretion.” The commissioner has never granted an exemption—but, the chief justice wrote, that doesn’t matter: Because the discretion exists in theory, the non-discrimination rule cannot be “generally applicable.” Thus, Smith doesn’t apply, and Philadelphia must satisfy strict scrutiny by proving that its rule is “narrowly tailored to serve a compelling interest.” The city flunked this test because it provided “no compelling reason why it has a particular interest in denying an exception to CSS while making them available to others.”
Roberts provided a coherent account of this case, leading readers to a conclusion that is, if not airtight, at least defensible. But his reasoning does not withstand scrutiny. As Justice Neil Gorsuch explained in his concurrence, the chief justice used “a dizzying series of maneuvers” to “turn a big dispute of constitutional law into a small one.”
For instance, the provision of the contract that Roberts found objectionable does not apply to the certification of prospective foster parents, but rather the placement of children in foster homes—a totally different stage of the process. The provision that applies to certification of foster parents allows no exceptions and would seem to be “generally applicable.” To get around this roadblock, Roberts performed a sleight of hand, grafting the exceptions from one clause onto the entire contract. And what about Philadelphia’s Fair Practices Ordinance, which bars anti-gay discrimination in public accommodations? Roberts simply announced that foster care agencies are not a “public accommodation” because they involve “a customized and selective assessment.” As Gorsuch pointed out, this definition of a public accommodation is nowhere to be found in any state statute; instead, “the majority just declares it—a new rule of Pennsylvania common law handed down by the United States Supreme Court.”
Despite Roberts’ dubious logic, it’s easy to see why the three liberal justices signed onto his opinion. First and foremost, the decision does not imperil most LGBTQ non-discrimination laws, which usually lack an exception that would trigger strict scrutiny. (When they do contain exceptions, it’s often for religious conduct.) Roberts confirmed that ending anti-gay discrimination is a “weighty” state interest, quoting Masterpiece Cakeshop for the proposition that “our society has come to the recognition that gay persons and gay couples cannot be treated as social outcasts or as inferior in dignity and worth.” So lower courts can continue to uphold run-of-the-mill civil rights laws that protect LGBTQ people. Moreover, as Gorsuch noted in his concurrence, Philadelphia can get around this decision by abolishing discretion at every stage of the foster care process.
In short, it was likely clear from the start that the six conservative justices wanted to rule for CSS somehow. To limit the damage, the liberal justices signed onto Roberts’ narrow opinion, which hands a symbolic victory to religious freedom while deciding almost nothing. Fulton is Masterpiece Cakeshop redux: Once again, the Supreme Court has dabbled in the culture wars without handing a clear win to either side.
As painful as it may be to see the liberal justices supporting a taxpayer-funded agency’s ability to discriminate against same-sex couples, the strategy makes good sense. The alternative—overruling Smith and subjecting most burdens on religion to strict scrutiny—would be much worse. Justice Samuel Alito, joined by Justice Clarence Thomas and Gorsuch, argued for reversing Smith in a 77-page opinion that would kick open the door to endless exemptions from non-discrimination laws for religious people, organizations, and businesses. Alito’s path would imperil countless laws that happen to hinder religious exercise, including those that allow LGBTQ equal access to employment, housing, the marketplace, and other necessities of life.
Barrett, in a concurrence joined by Kavanaugh and Breyer, refused to go down that road, expressing her discomfort with Smith while admitting that she does not know what should replace it. Her brief opinion raises the possibility that she and Kavanaugh may have initially voted to overturn Smith, then walked back from the brink, forcing Alito to turn his majority opinion into a dissent. The mystery is deepened by the fact that Barrett and Kavanaugh joined Tandon v. Newsom, an unsigned 5–4 decision on the court’s shadow docket, in April. Tandon took a much bigger bite out of Smith than Fulton did. So perhaps Barrett and Kavanaugh switched their votes between Tandon and Fulton, abandoning the revolt against Smith after helping to set it into motion. Gorsuch hinted at that possibility in his Fulton concurrence, complaining that the court “began to resolve at least some of the confusion surrounding Smith’s application in Tandon” before pulling back in Fulton.
So six justices are interested in overruling Smith—but after Fulton, the Supreme Court is no closer to taking that leap. CSS will get a new contract without having to screen same-sex couples, but other LGBTQ non-discrimination laws remain unaffected. Roberts, who so recently seemed sidelined, is back in control of his court. If anyone can claim a clean victory from Fulton, it’s the Chief Justice of the United States.
