In one of it most highly-anticipated decisions, the U.S. Supreme Court in Fulton v. City of Philadelphia surprised everyone by ruling unanimously for Catholic Social Services. In the process, the majority opinion moved free exercise jurisprudence closer to the existing standards of free speech.
The City had required CSS to include same-sex married couples in its foster parent certification program. CSS, citing its religious belief that marriage is "a sacred bond between a man and a woman," refused. According to the Court opinion, CSS also declines to certify unmarried cohabiting couples, but it will certify single foster parents who are gay or lesbian. It also accepts and places children without regard to their sexual orientation. The city refused to send any more children to CSS, which sued for religious discrimination.
The entire court decreed that the city's refusal violated the free exercise clause of the First Amendment. Declining the invitation to overturn the controversial Smith decision that held that "neutral and generally applicable" rules do not violate the First Amendment, the majority of justices found that the case warranted strict scrutiny and that the city's actions could not survive that analysis. In reaching that conclusion, the Court echoed themes that we more frequently find in free speech cases.
For example, much has been made of the fact that the Court declined to apply Smith because the City's foster care contract allowed the relevant Commissioner unfettered discretion to grant exceptions. The argument is that, if governments do not allow such discretion, then the more lenient Smith standard will apply. This argument, however, overlooks two facts. First, five Justices indicated a willingness to overturn Smith in future cases. The precedent still survives only because Justices Kavanaugh and Barrett (ironically, the two most recent and controversial appointments) agreed that the Court need not reach that issue in this case.
More important, however, is the fact that the Court focused on the Commissioner's unfettered discretion in the first place. Free speech jurisprudence has long held that when a statutory scheme gives a government official discretion to limit speech, but has no standards for that discretion, then the scheme is unconstitutional. In this case, the Court for the first time clearly and unequivocally applied the same principle to its free exercise analysis.
Another important holding is that the City cannot consider certification of foster parents under its public accommodations statute. According to the Court, public accommodations "provide a benefit to the general public allowing individual members of the general public to avail themselves of that benefit if they so desire." Certification as a foster parent, however, is not available to just anyone. "It involves a customized and selective assessment that bears little resemblance to staying in a hotel, eating at a restaurant, or riding a bus." Thus, "the one-size-fits-all public accommodations model is a poor match for the foster care system."
Finally, the Court held that the City had not sufficiently proven the compelling interests that it claimed. The City stated its claims "at a high level of generality," but the Court required more specific evidence about the City's specific decision. For most of its compelling interests, the City offered only speculation. The Court accepted the compelling interest of ensuring equal treatment of foster parents and foster children, but found that the "City offers no compelling reason why it has a particular interest in denying an exception to CSS while making them available to others."
This requirement of specific evidence again echoes free speech jurisprudence. A government, for example, cannot simply claim that particular speech might inspire someone to become violent. It must show evidence that the speech is intended to incite imminent lawless action.
In the coming days, scholars will be poring over the concurrences in this decision, counting which Justices signed on to which part of which opinion. The majority opinion, however, indicates that all of the Justices are willing to move free exercise jurisprudence closer to its sibling First Amendment right.