Master The Supreme Court held that Philadelphia violated the Free Exercise Clause by excluding a Catholic foster-care agency from referrals under a contract that allowed discretionary exemptions from a non-discrimination requirement. with this comprehensive case brief.
Fulton v. City of Philadelphia sits at the intersection of religious liberty and anti-discrimination norms in the administration of government social services. The case involved a long-standing Catholic foster-care agency that would not certify same-sex married couples as foster parents because of religious beliefs, and a city government that sought to enforce non-discrimination requirements in its foster-care contracting regime. The Supreme Court unanimously found that the City of Philadelphia's approach violated the Free Exercise Clause because its contracting policy was not generally applicable: it allowed discretionary, case-by-case exemptions but categorically denied a religious exemption to the Catholic agency.
The decision is significant for two reasons. First, it clarifies that when a government policy invites individualized, discretionary exceptions, it cannot withhold comparable accommodations from religious objectors absent satisfaction of strict scrutiny. Second, Fulton is deliberately narrow and does not overrule Employment Division v. Smith, even though several Justices signaled openness to revisiting Smith. The case therefore offers a practical roadmap for governments and litigants: if the government wants to avoid strict scrutiny in Free Exercise cases, it must craft neutral rules that are genuinely general and leave no room for ad hoc exemptions.
Fulton v. City of Philadelphia, 593 U.S. ___, 141 S. Ct. 1868 (2021) (U.S. Supreme Court)
For decades, Catholic Social Services (CSS), affiliated with the Archdiocese of Philadelphia, contracted with the City to provide foster-care services, including certifying prospective foster parents through home studies. In 2018, after reports that two faith-based agencies would not certify same-sex couples, the City stopped referring children to CSS unless it agreed to certify same-sex married couples in accordance with a contract provision (Section 3.21) and the City's Fair Practices Ordinance (FPO), which prohibits discrimination on various bases, including sexual orientation. CSS stated that for religious reasons it could not provide the written endorsement inherent in certifying same-sex marriages but would serve LGBTQ individuals in other ways and would refer same-sex couples to any of approximately 20–30 other agencies that would certify them. No same-sex couple had sought certification from CSS. The City nonetheless declined to renew or refer cases to CSS. CSS and several foster parents sued, seeking a preliminary injunction, alleging violations of the Free Exercise Clause (and raising Free Speech and Establishment claims). The district court denied relief; the Third Circuit affirmed, applying Employment Division v. Smith on the view that the City's policy was neutral and generally applicable. The Supreme Court granted certiorari.
Does the City of Philadelphia violate the Free Exercise Clause by refusing to contract with a religious foster-care agency unless it agrees to certify same-sex married couples, where the City's contract contains a system of discretionary exemptions from its non-discrimination requirement?
Under the Free Exercise Clause, a law or policy that is not neutral and generally applicable is subject to strict scrutiny. A regime is not generally applicable if it permits individualized, discretionary exemptions or otherwise treats comparable secular conduct more favorably than religious conduct. When strict scrutiny applies, the government must demonstrate that denying a religious exemption furthers a compelling interest and is the least restrictive means of achieving that interest. See Employment Division v. Smith; Church of the Lukumi Babalu Aye, Inc. v. City of Hialeah; Sherbert v. Verner.
Yes. Because Philadelphia's foster-care contract allowed discretionary exemptions from its non-discrimination requirement, the policy was not generally applicable. Philadelphia's refusal to grant CSS a religious exemption therefore triggered strict scrutiny, which the City failed to satisfy. The City's actions violated the Free Exercise Clause.
Chief Justice Roberts, writing for the Court, explained that Smith's safe harbor for neutral and generally applicable laws does not apply where the government's policy contemplates individualized exemptions or otherwise singles out religious conduct for disfavorable treatment. The standard foster-care contract's Section 3.21 prohibited discrimination on various grounds, including sexual orientation, but expressly authorized the Commissioner to grant exemptions in her sole discretion. That availability of case-by-case exceptions rendered the policy not generally applicable under Smith and Lukumi, which teach that a system of individualized assessments triggers strict scrutiny. Applying strict scrutiny, the Court assumed that the City's goals—ensuring equal treatment of prospective foster parents and maximizing the number of foster families—are weighty, even compelling in the abstract. But the City failed to show that refusing a religious exemption to CSS was the least restrictive means of advancing those interests. The record showed that no same-sex couple had sought certification from CSS, numerous other agencies stood ready to certify same-sex couples, and the City's own discretion to grant exceptions undercut any claim that uniform compliance was essential. Where the government leaves itself room to make exceptions for secular reasons, it cannot decline comparable accommodations for religious reasons without an exceptionally strong, particularized showing of necessity. The Court did not decide whether the City's Fair Practices Ordinance independently applied or constituted a public-accommodations law covering foster-parent certifications, noting that the contract alone sufficed to resolve the case. Nor did the Court reach CSS's free speech or establishment claims. Several Justices concurred separately: Justice Barrett (joined by Justice Kavanaugh and in part by Justice Breyer) questioned Smith's soundness but expressed uncertainty about a replacement test; Justice Alito (joined by Justices Thomas and Gorsuch) would have overruled Smith and resolved the case more broadly. The majority, however, opted for a narrow approach grounded in the contract's discretionary-exemption clause.
Fulton is a cornerstone Free Exercise case for understanding how governmental discretion affects constitutional analysis. It reaffirms that policies permitting ad hoc exemptions are not generally applicable and will trigger strict scrutiny when religious claimants are denied similar relief. For governments, the lesson is clear: to avoid strict scrutiny, write rules that are both neutral and truly general, with no discretionary escape hatches. For advocates, Fulton provides a targeted strategy—identify discretionary exemptions or secular carveouts to argue for strict scrutiny. Equally important, Fulton does not overrule Employment Division v. Smith. The decision is narrow and contract-specific, reflecting a Court willing to protect religious exercise without broadly unsettling anti-discrimination regimes. It leaves open the broader debate about Smith's future and the precise contours of compelling interests and least restrictive means in contexts where third-party equality interests are implicated.
No. The Court unanimously ruled for the religious claimants on narrow grounds without overruling Smith. The majority held that Philadelphia's policy was not generally applicable because it permitted discretionary exemptions, which triggered strict scrutiny under Smith and Lukumi. Several concurrences discussed Smith's viability, but the Court left it intact.
Under Free Exercise precedents, a law ceases to be generally applicable when officials may grant individualized exceptions. That structure risks religious gerrymanders or unequal treatment and therefore requires the government to justify denying religious exemptions under strict scrutiny. In Fulton, the contract's Section 3.21 allowed the Commissioner to grant exceptions to the non-discrimination clause, undermining the City's claim that uniform compliance was indispensable.
No. The Court avoided that question, concluding that the City's own contract dispositively allowed discretionary exemptions, which was sufficient to resolve the Free Exercise claim. Thus, the opinion does not define the scope of the City's public-accommodations law in this context.
Philadelphia asserted compelling interests in eradicating discrimination against same-sex couples and ensuring a robust pool of foster families. The Court assumed these interests are important but found they were not pursued through the least restrictive means, given the availability of other agencies to certify same-sex couples, the absence of evidence of actual denial by CSS to any same-sex couple, and the City's own discretionary-exemption regime. The City did not show that denying CSS an exemption was necessary to achieve its goals.
Governments should draft neutral rules that are genuinely generally applicable: avoid discretionary, case-by-case exemptions unless the same accommodation is available to religious claimants; document concrete, particularized harms if denying religious exemptions is claimed to be essential; and ensure consistent enforcement across secular and religious conduct. Removing discretionary exemptions from contracts can often return analysis to Smith's more deferential framework.
The Court did not reach those claims because it resolved the case on Free Exercise grounds. Having found a Free Exercise violation, it remanded for further proceedings consistent with its opinion, leaving the other claims unnecessary to decide.
Fulton v. City of Philadelphia underscores a central Free Exercise principle: if the government reserves discretion to make exceptions to a rule, it must be prepared to extend comparable accommodations to religious observers or meet strict scrutiny. The Court's narrow, contract-specific holding turned on Philadelphia's choice to include a discretionary-exemptions clause in its foster-care contracts while refusing a religious exemption to CSS.
For law students and practitioners, Fulton is a blueprint for both sides of Free Exercise disputes. It shows how to identify and leverage individualized-exemption structures to trigger strict scrutiny, and it signals to governments that carefully designed, evenhandedly enforced policies—without ad hoc exemptions—are more likely to survive constitutional review, all while leaving broader debates about Smith for another day.
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