The Religious Freedom Institute applauds the 9-0 U.S. Supreme Court decision in Fulton v. City of Philadelphia. Thanks to the Court, Catholic Social Services (CSS) may now resume, at least for the time being, its vital work of placing foster children in loving homes.

Protecting the First Amendment right of religious free exercise for all (free exercise equality) is important for our nation. It not only guarantees an inalienable right, given by God to each of us. It also places crucial limits on power at all levels of government and ensures the presence of religious ideas in our public debates over law and public policy. Equally important, the right of free exercise ensures the contributions of America’s religious communities to the public good, such as caring for foster children.

Unfortunately, while the Supreme Court in Fulton vindicated for now the rights of CSS and the foster families it serves, the decision was based on a technicality, which could easily be overcome should the city decide to pursue its anti-free exercise ideology. The Court’s reliance on the technicality suggests it may not be prepared to protect religious freedom equality as intended by the Founders.

This case began in March 2018 when the Philadelphia municipal government banned the placing of foster children in homes affiliated with CSS. Following a media “exposé,” the city determined that the CSS position on marriage – based on two-millennia-old biblical and church teaching – violated Philadelphia’s Fair Practices Ordinance and its contract with the city, both of which forbid discrimination based on sexual orientation and “gender identity” (SOGI).

CSS understands marriage to be the union of one man and one woman, ordained by God for the good of the spouses, the good of the children, and the common good of society. It views Catholic teachings on caring for needy children and upholding the truths of marriage and sexuality as inseparable, grounded in faith and reason.

Sharonell Fulton, the other plaintiff foster mothers, and the staff of CSS, each exemplify joyful, self-sacrificial love that flows from their religious beliefs. Their views of the realities of marriage, family, men and women, and sexuality are rational and visible in common human experience. Their simple devotion to love and service sharply contrasts with the ugliness of the City of Philadelphia’s deployment of government power to coerce them either to embrace SOGI ideology or get out of business.

The Catholic Church has served vulnerable children in Philadelphia for over two centuries, longer than any government – federal, state, or municipal. Neither it nor its agencies, including CSS, can abandon the Church’s moral teachings without abandoning their religion. Protecting such a public expression of religion is precisely what the Founders intended when they guaranteed in the First Amendment the right of religious free exercise to all Americans and their religious communities, unhindered by – indeed encouraged by – the state.

The core judicial problem in this case is the refusal of the majority to reverse the 1990 Employment Division v. Smith decision, which paved the way for states and cities to sideline religion by denying religious exemptions. RFI’s Islam and Religious Freedom Action Team filed an amicus brief addressing this and related issues.

In Smith the Court had declared that government may severely restrict the free exercise of religion by denying any religious exemptions, so long as it does so by way of a “neutral law of general applicability,” that is, a law not expressly targeted against religion. This ruling devastated decades of precedent in which the Court – with the Founders – had recognized “areas of conduct protected by the Free Exercise Clause of the First Amendment and thus beyond the power of the State to control…” (Wisconsin v. Yoder, 1972). Again, the goal of the Founders was to encourage the presence of religion in American public life.

Although Congress acted quickly (and almost unanimously) to restore the traditional understanding of free exercise by passing the Religious Freedom Restoration Act of 1993, a later Court decision decreed that RFRA does not apply to local and state governments. Under Smith, these governments may force religious groups like Catholic Social Services into line, or force them out of business. And that’s precisely what the City of Philadelphia sought to do.

Today, a majority of justices appear to agree that the Smith rule has harmed free exercise in America. But in Fulton, a majority also agreed not to overturn it. The final ruling simply declared that Smith did not apply. Why? Because the Philadelphia law had allowed for exemptions, which meant it technically was not a law of general applicability.

But those exemptions had never been used by the city (and certainly were not used to exempt CSS or other religions). This means that if Philadelphia chooses to enforce its SOGI policy against CSS again, it may simply rewrite the law and remove the never-used exemption power. Should that happen, in Justice Alito’s words, “voila, today’s decision will vanish – and the parties will be back where they started.”

The Religious Freedom Institute associates itself with Justice Alito’s argument that Smith should have been overturned because it contradicts the plain meaning of the constitutional guarantee of religious free exercise.

Let me end by underscoring the cost of the Court’s timidity. CSS has lost three years fighting this unjust law. Foster families and needy children have suffered. Sadly, governments across the nation are adopting the model employed by Philadelphia, jeopardizing the indispensable contribution countless faith-based providers make in this sector.

In effect, the city labeled CSS a “hate group” because it upholds the moral teachings of Christianity. This false and vicious label is being affixed by American governments to anyone or any institution that continues to embrace moral orthodoxy on matters of human nature, marriage, and sexuality. It is a hateful slur unworthy of our nation. Unfortunately, it is being embraced by the current administration and many in Congress through their support of the so-called “Equality Act,” which would destroy free exercise equality in America. This trend represents an authoritarian impulse. For American government at any level to arrogate to itself such authority, and to employ its powers in such a fashion, is contrary to our constitution and dangerous for our democracy.

The Court’s failure to address this problem by overturning Smith reminds us yet again that the judiciary, while critically important, cannot be relied upon to r
epulse the assault on religious freedom occurring in the United States today. The only lasting solution lies in democratic action by American citizens and their institutions to alter those laws targeting the free exercise of religion.

Of course, defending the rights of orthodox believers in our nation’s laws means protecting the truth claim at the core of our national experiment in democracy, namely that God created all of us equal. Those who truly believe that will treat their fellow citizens identifying as gay or transgender with the same love and respect due to every child of God. We are neighbors, not enemies.

But the reverse is also true. Those Christians, Jews, Muslims and others who support the age-old norms of human morality are not haters and bigots who, like racists, must be driven from American public life. No government or court should accept that unjust and dangerous lie, however expedient it may be.

The High Court rightly vindicated for now the rights of CSS and the foster parents who trust CSS as a partner in their desire to care for needy children in Philadelphia. It should also have put America’s First Freedom back where it belongs – at the center of American life.