Fulton v. City of Philadelphia, 593 U.S. ___, 141 S. Ct. 1868 (2021) (U.S. Supreme Court)
Fulton v. City of Philadelphia sits at the intersection of religious liberty and anti-discrimination norms in the administration of government social services.
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.
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.