In an article published recently in First Things titled, “After Fulton, Religious Foster Care Agencies Still Vulnerable” University of Notre Dame law professor and RFI FORIS scholar Richard W. Garnett considers the decision the Supreme Court handed down last week in Fulton v. City of Philadelphia. He writes:

Although they disagreed about the controlling legal standard, all nine justices—the more “liberal” and the more “conservative”—agreed that the City of Philadelphia violated the Constitution’s free-exercise guarantee when it excluded Catholic Social Services (CSS) from participating in the city’s foster care system.

The unanimous decision, however, lacks a robust grounding and is based on a technicality in the city’s regulation, which could be amended to imperil again CSS’s free-exercise protections. Garnett writes: 

[T]he outcome depended on features of the city’s regulatory regime that undermined its “general applicability” and that could presumably be easily changed. The Court did not, as Justices Alito, Gorsuch, and Thomas would have done, overrule the controversial 1990 ruling in Employment Division v. Smith, and so CSS’s ability to provide foster services in a manner consistent with its character and mission is still vulnerable.

Moving beyond a legal analysis, Garnett sums up the dire consequences for CSS, and for institutional religious freedom generally, should the City of Philadelphia revise its nondiscrimination rule in a way that would allow the city to find refuge in Smith for its exclusionary practices. He writes: 

If the city were to rewrite its rules to more savvily shut out CSS, it would harm the interests of vulnerable children, prevent experienced and caring providers from using their skills and services for the common good, and reveal an unbalanced ideological (“religious”?) zeal. 

Garnett concludes:

Most religious exemptions requests do not involve hot-button moral questions or “social issues.” … Increasingly, though, as the understanding of the public interest in preventing invidious discrimination has expanded—for example, to requiring Catholic health-care institutions to perform abortions—exemptions requests are taking on a different character, and are seen as threatening to progressive commitments. Fulton is hardly the end of the matter.

Read the full article: After Fulton, Religious Foster Care Agencies Still Vulnerable.