On June 17, 2021, the United States Supreme Court unanimously ruled in favor of a religious social service agency’s ability to adhere to its sincerely held religious beliefs. In Fulton v. City of Philadelphia,1 the Supreme Court held that a city may not refuse to contract with a faith-based agency if the agency refuses to certify same-sex couples as foster parents.
What led to the Supreme Court’s decision?
For more than 50 years, Catholic Social Services (CSS) contracted with the City of Philadelphia to serve children and families through the city’s foster care program. CSS provided these services in accordance with its sincerely held religious beliefs, including its conviction that, under church teachings, marriage is a sacred bond between a man and a woman. Accordingly, CSS declined to certify unmarried couples (regardless of their sexual orientation) or same-sex married couples as foster parents.
After a local newspaper publicized the CSS policy in 2018, the City of Philadelphia informed CSS that it would no longer refer children to the agency unless it agreed to change its policy and certify same-sex couples. The city explained that the agency’s refusal to certify same-sex married couples violated non-discrimination provisions in both the agency’s contract with the city and the City of Philadelphia’s Fair Practices Ordinance. As a result, CSS and three affiliated foster parents sued the city on the grounds that the city’s actions violated the organization’s rights under the Free Exercise Clause of the First Amendment.
While lower courts ruled in favor of the city, the Supreme Court ultimately ruled in favor of CSS and the affiliated foster parents. The court applied what is known as the “strict scrutiny standard” to the facts of this case. In utilizing the strict scrutiny test, the court explained that “[a] government policy can survive strict scrutiny only if it advances compelling interests and is narrowly tailored to achieve those interests."2
This test requires a government action that burdens or restricts religious exercise to further a compelling governmental interest and be done in the least restrictive way possible.
In essence, the city had forced CSS to choose between operating in accordance with its sincerely-held religious beliefs and continuing to offer its foster care services.3
Therefore, the Supreme Court determined that “[t]he refusal of Philadelphia to contract with [Catholic Social Services] for the provision of foster care services unless it agrees to certify same-sex couples as foster parents cannot survive strict scrutiny, and violates the First Amendment.”4
What does this mean for Christian organizations?
While the Fulton decision represents a positive outcome for religious freedom protection, it is a narrow decision that focuses on the specific contract language and the City of Philadelphia’s specific policies. In a previous ruling, Employment Division, Department of Human Resources v. Smith, the Supreme Court employed a lower standard than strict scrutiny by stating that “laws incidentally burdening religion are ordinarily not subject to strict scrutiny under the Free Exercise Clause so long as they are both neutral and generally applicable.”5
In Fulton, the court chose not to reevaluate Smith and the several religious freedom questions that were left open in that case. The court stated, “[T]his case falls outside Smith because the City has burdened CSS’ religious exercise through policies that do not satisfy the threshold requirement of being neutral and generally applicable.”6 The decision leaves cities and states with the ability to enforce anti-discrimination laws that may conflict with the religious beliefs of some ministries – as long as those regulations are “neutral and generally applicable.”
Notably, the majority opinion in Fulton cited Boy Scouts of America v. Dale7 to highlight the First Amendment exemptions that the Supreme Court has often permitted from “generally applicable” laws. Like the recent Fulton case, the Dale case also involved an organization’s stance on sexual orientation. This citation of Dale may cause lower courts to be hesitant to interfere in religious organizations’ belief-based views related to sexual orientation and gender identity.
What proactive steps can Christian organizations take to protect themselves?
The Brotherhood Mutual Safety Library includes several resources for ministries to consider as you seek to protect your organization’s sincerely held religious beliefs.
Religious Freedom Whitepaper and Webpage: Addresses emerging religious freedom issues and includes sample policy forms, such as a Purpose Statement, Morals Clause, and Marriage, Gender, and Appropriate Behavior Clause.
The Equality Act’s Potential Impact on Christian Organizations: Discusses issues within the proposed act, links to recent court cases, and highlights the importance of documenting in writing your ministry’s sincerely held beliefs in case they are challenged.
Brotherhood Mutual also offers broad Religious Freedom ProtectionSM Coverage for religious institutions in relation to your belief-based decisions and communication. This includes coverage for emotional injury claims that result from alleged discrimination, religious communication, or religious activities. The endorsement also offers funds to help respond to targeted actions by government agencies, as well as tax-exemption challenges.*
* Coverage for actual claims will be based on applicable policy documents applied to the individual facts of an actual claim event. Some coverages may not be available in all states.
1. 592 U.S 1 (2021)
2. Fulton, 593 U.S. at 13 referencing Church of Lukumi Babalu Aye, Inc. V. Hialeah, 508 U. 2. S. 546
3. The Court wrote, “. . . the City’s actions have burdened CSS’s religious exercise by putting it to the choice of curtailing its mission or approving relationships inconsistent with its beliefs.” Id. at 5
4. Id. at 15
5. 494 U.S. 872, 878–882
6. Fulton, at 2
7. 530 U. S. 640, 656 (2000)
Posted July 2, 2021
The information provided in this article is intended to be helpful, but it does not constitute legal advice and is not a substitute for the advice from a licensed attorney in your area. We strongly encourage you to regularly consult with a local attorney as part of your risk management program.
Thank you for your interest in Brotherhood Mutual. We appreciate the opportunity to provide your church or other ministry with an insurance quote and will reply to your request as soon as possible.
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