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Though anticipated as perhaps "the most important religious liberty case in the last decade," Fulton v. City of Philadelphia left many unsatisfied. The decision appears to be a big win for religious liberty—a unanimous Supreme Court decided that the city of Philadelphia cannot exclude Catholic Social Services (CSS) from foster care services. But go a millimeter beneath the surface, and the lasting relevance of this case becomes murky. The holding was incredibly narrow, and cities with minimally competent lawyers can easily evade its reach. If anything, this case (and the Masterpiece Cakeshop case before it) suggests that the Court has no appetite to "settle" controversies between religious liberty and LGBTQ rights. And given the complexities and interests in this area, we should applaud the Court's willingness to leave these issues to the people.
But first, some background on the case. The Catholic Church has been providing care for needy and orphaned children in Philadelphia since the 1700s. After it came to light in 2018 that Catholic Social Services would not certify same-sex couples to be foster parents, but would instead refer them to other foster agencies in Philadelphia, city officials determined to freeze all foster referrals to CSS and end their contract with the agency. This began the path of litigation that (for now) concluded in the Supreme Court's decision on June 17. The Court sided 9-0 with CSS, determining that the city's actions violated the First Amendment's Free Exercise Clause by requiring CSS to choose between its religious beliefs and helping foster children in need.
But the 9-0 ruling hides a great deal of disagreement over why CSS should have won. The majority opinion, written by Chief Justice John Roberts and joined by five other justices, argued that because Philadelphia's nondiscrimination statute gave a government official the (never exercised) ability to grant exemptions at his or her "sole discretion," the law was not "generally applicable," and thus failed to satisfy the Free Exercise Clause. As Justice Samuel Alito noted in a scathing concurrence, it will not be hard for Philadelphia to close this loophole: "if the City wants to get around today's decision, it can simply eliminate the never-used exemption power. If it does that, then, voilà, today's decision will vanish—and the parties will be back where they started." Alito wrote at length about how the case should have revisited the Court's standards for adjudicating religious liberty cases, but his opinion could only attract two other votes (Thomas and Gorsuch).
The majority's decision is reminiscent of its 2018 decision Masterpiece Cakeshop v. CCRC, in which the Court also decided a highly controversial gay rights-religious liberty case on narrow grounds. Masterpiece dealt with a Christian baker who refused to bake a cake for a gay wedding. The Court said that a few critical comments from government officials were enough to show that the government had not treated the baker's religious beliefs neutrally, and thus the Free Exercise Clause had been violated. The decision entirely sidestepped the substantive issues in the case, leaving them for another day (and, predictably, the baker is back in court).
Fulton and Masterpiece suggest that the Court does not want to draw firm lines in disputes over religious liberty and LGBTQ anti-discrimination laws. Those who care about pluralism and nuance should applaud this approach. Bright-line legal rules often fail to accommodate as many interests and parties as a legislative approach could. As Harvard Law professor Martha Minow writes, "accommodation and negotiation can identify practical solutions where abstract principles sometimes cannot."
The facts in Fulton seem to be a prime example of a scenario in which the government can accommodate all parties at very little cost. Gay couples are not barred from fostering children in Philadelphia, and CSS is only one of nearly 30 agencies which certify couples or individuals for foster care in the city. According to the record, no gay couple had ever been turned away from foster care certification at CSS. If the city grants CSS an accommodation, gay couples who wish to be certified for foster care can do so with no additional obstacles, and CSS can continue to help children in need. What's not to like?
Critics might say that if a gay couple contacted CSS about becoming certified for foster care service, they would be turned away, thus suffering a dignitary harm. Again, the fact that this has never happened with CSS suggests it is likely not a major threat, but there are ways that Philadelphia could preempt even these unlikely affronts. For example, Philadelphia could create a pre-screening process that gathers basic information about people interested in fostering and then use that information to match or suggest agencies they could work with. That way, no gay couple would be turned away, and faith-based groups like CSS could continue to do the work they feel called to do. While this approach may not completely satisfy all sides, it is an example of something that the legislative process but not the judiciary can accomplish.
The benefit of leaving the issue to the legislative process is that thoughtful approaches can be crafted to recognize the interests of each side. Courts do not have the same tools and leeway for negotiating complex social issues that legislatures do, and one side always has to be declared the winner. The downside of this approach is the central downside of democracy: it requires a lot of effort. Compromise is often necessary, and compromise (by definition) means that both parties get less than they want. However, in a pluralistic society, there is no better way to address differences.
The most well-known success story in this area is Utah. Since the passage of the 2015 Utah Fairness for All compromise, a law prohibiting employment, housing and other forms of discrimination on the basis of sexual orientation and gender identity while also recognizing religious interests, there has been much more than a legal change. Significant cultural shifts have occurred as well. In 2019, the Public Religion Research Institute released data that showed 77 percent of Utahns favored state nondiscrimination protection for LGBTQ persons. This meant Utah was tied for the second highest percentage of support for such laws in the United States (only New Hampshire ranked higher with 81 percent). Although advocates on both sides have criticized Utah's approach for not going far enough one way or the other, it continues to be the most workable model in the United States. And while no other states have followed Utah's lead, there are at least 10 counties that have embraced this approach and enjoy similar benefits.
LGBTQ people are not going anywhere. Religious people who believe that marriage is a union of a man and a woman are not going anywhere. The individuals in these groups are going to have to find a way to live alongside each other, aiming for practicality over ideology. Rather than looking for a total victory, we should read Fulton as an invitation to recognize the dignity and interests of both sides, and seek to accommodate as many interests as we can in good conscience. The Supreme Court didn't do much to resolve the conflict—and we shouldn't expect it to. That burden falls on each of us.
Brady Earley is a senior at BYU planning to attend the University of Chicago Law School in the fall. Daniel Frost is an assistant teaching professor in the School of Family Life at BYU.
The views expressed in this article are the writers' own.
