The United States Supreme Court ruled decisively in favor of a Catholic foster care agency on Thursday, with all nine justices agreeing that the city of Philadelphia violated the First Amendment’s protection of religious liberty when it ended a contract with Catholic Social Services (CSS) over service to LGBT people.
“It is plain that the City’s actions have burdened CSS’s religious exercise by putting it to the choice of curtailing its mission or approving relationships inconsistent with its beliefs,” wrote Chief Justice John Roberts.
Philadelphia claimed the city could not contract foster care services with a Catholic agency that only served married heterosexual couples because of an antidiscrimination law ensuring that everyone, regardless of sexual orientation, has equal access to public accommodations. The court found, however, that foster parenting is not a “public accommodation,” since certification is not available to the public and “bears little resemblance to staying in a hotel, eating at a restaurant, or riding a bus.”
According to the court, there was also no evidence presented in the record that the Catholic agency’s policies ever prevented a same-sex couple from fostering a child, or that it would have that effect.
The majority opinion was joined by justices Stephen Breyer, Sonia Sotomayor, Elena Kagan, Brett Kavanaugh, and Amy Coney Barrett.
The other three justices—Samuel Alito, Neil Gorsuch, and Clarence Thomas—agreed with the judgement but signed on to two concurring opinions arguing the court should go further in defense of religious exercise. They wanted the court to overturn a 1990 precedent written by conservative legal icon Antonin Scalia, which made it easier for governments to justify laws that place a burden on religious activity.
In Employment Division vs. Smith, Scalia said that governments can burden religious practice as long as it is done “incidentally,” and religious activities are not being targeted by the “neutral” and “generally applicable” law.
In Thursday’s ruling, Roberts and the majority said Philadelphia was intentionally targeting the Catholic foster care agency. The law was not neutral toward religion and not generally applicable, since it was written with the Catholic agency in mind. The court decided not to overturn the 1990 precedent.
Gorsuch, in his concurring opinion, questioned the majorities’ decision to “dodge” the critical legal question of the standard for religious accommodation.