During its last term, the Supreme Court garnered considerable attention by wading into the culture wars over polarizing social issues such as abortion and sexuality. Decisions to strike down a common-sense law requiring abortionists to have hospital admitting privileges and to redefine “sex” to include sexual orientation and gender identity were mourned by conservatives and applauded by liberals.

While secular activists lamented, conservatives celebrated decisions upholding the rights of religious families and schools to participate in neutral tuition assistance programs and requiring foreign organizations to adopt policies opposing prostitution and sex trafficking to receive federal funds to combat HIV/AIDS. The Court will likely remain in the public eye during its current term, when it will hear arguments in Fulton v. City of Philadelphia, a case that will have significant implications for the future of religious liberty and foster care in America. The justices will hear oral arguments in the case on November 4.

The First Amendment provides that “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof ….” Thus, the Constitution protects religious liberty in two separate but related provisions. The Establishment Clause prevents Congress from favoring any religious denomination at the national level, while the Free Exercise Clause guarantees Americans the right to believe and act according to their religious convictions. Both Clauses also constrain the actions of the states. Prior to 1963, the right to freely exercise one’s religion was somewhat limited. While an individual’s religious beliefs were absolutely protected, his or her freedom to act on those beliefs could be fairly easily regulated.  

In 1963 and 1972, the Supreme Court decided two landmark religious liberty cases, Sherbert v. Verner and Wisconsin v. Yoder. These cases established the strict scrutiny standard, which means that when the government implements a law or policy that burdens someone’s right to free exercise, it must show (1) that it has a compelling state interest that justifies its burden on religious exercise and (2) that its law or policy is the least restrictive means of accomplishing this compelling interest. Because of their robust protection of religious liberty, Sherbert and Yoder ushered in a Golden Age of religious freedom in America.

In 1990, the Court issued an unexpected decision that dramatically changed religious liberty protections. In Employment Division v. Smith, the Court abandoned the strict scrutiny standard and held that the government only needs to show that its law or policy is neutral and generally applicable in order to overcome a free exercise challenge. This “neutral law of general applicability” standard waters down protections for religious liberty by giving the government a lower bar to overcome. The government only needs to demonstrate that the law treats religious and secular groups equally and was not enacted to target religion. Under this standard, religious individuals are rarely successful in court and must prove that they were actively targeted for their religious beliefs to prevail.

In its upcoming term, the Court will consider Fulton v. City of Philadelphia. The decision will impact the rights of religious foster care agencies to speak and act consistently with their sincerely held religious beliefs. One of the plaintiffs in the case, Catholic Social Services (CSS), is a faith-based foster care agency that operates in Philadelphia. When a child enters Philadelphia’s foster care system, the City refers them to one of several foster care agencies. These agencies then evaluate prospective foster parents to certify that they meet state standards. Because of its sincerely held religious belief that marriage is between one man and one woman, CSS considers same-sex couples to be unmarried and is unable to certify them as foster parents. However, if an LGBT-identified couple were ever to approach them (which has never happened), CSS would refer them to another agency that would be a better fit. Nevertheless, Philadelphia’s Department of Human Services has stopped referring children to CSS.

In the lower courts, CSS argued that the City’s actions were neither neutral nor generally applicable and targeted CSS because of its religious beliefs. The Third Circuit Court of Appeals held that there was no First Amendment violation and that Philadelphia did not treat CSS differently because of its religious beliefs. Rather, the court found that Philadelphia was merely engaged in a good-faith effort to enforce its nondiscrimination policy, which “prohibits sexual orientation discrimination in public accommodations.”  

In Fulton, one of the major issues that the Supreme Court will consider is whether it should revisit its decision in Employment Division v. Smith. If the Court revisits and overrules Smith, it will be a major victory for religious liberty that could restore the favorable strict scrutiny standard. However, if the Court declines to revisit Smith, or revisits and upholds Smith, its damaging precedent will become further entrenched in American law, dealing a major blow to religious liberty. The Court’s decision could be influenced by its recent decision in Bostock v. Clayton County, which, as Justice Alito predicted in his dissent, could affect the speech of those who desire to “express[] disapproval of same-sex relationships …”

Allowing religious discrimination against faith-based foster care agencies would not just be a blow to the constitutionally-protected right of religious liberty. It would also be detrimental to the already overburdened foster care system. In states and localities that have forced religious agencies to close, children suffer. For example, after Illinois passed a statute that forced all foster care and adoption agencies to place children with same-sex couples, nearly 3,000 children were displaced from religious agencies that were forced to close, and over 5,000 foster homes were lost. In Philadelphia, the home of a “Foster Parent of the Year” award winner who had been serving needy youth for decades was forcibly closed to foster youth, as were others. After the City ended its contract with CSS, siblings of children who had already been placed by the agency faced the daunting prospective of being forced into separate homes.  

Pennsylvania is not the only state to witness the targeting of religious foster care agencies. In Michigan, an activist couple targeted St. Vincent Catholic Charities, passing four other agencies they could have worked with as they traveled from their home to St. Vincent. Here, referrals had been made. Children in St. Vincent’s care had been transferred to other agencies working with LGBT-identified couples who were interested in adopting children in St. Vincent’s care. And in New York, New Hope Family Services, which has been serving needy children for over 50 years, was informed by the state that it must either change its policy of referring LGBT-identified couples to other agencies or cease its adoption services. A New York District Court judge recently issued an injunction on behalf of the church, preventing the state “from revoking New Hope Family Services’ authorization to place children for adoption.”

In Fulton, the Court stands poised to issue a decision that will have a lasting impact on the religious liberty of foster care agencies and perhaps that of all Americans. While we watch and wait for the Court’s decision, we should pray that God would give the justices wisdom to make the right decision.

Kaitlyn Shepherd is a legal intern with the Policy & Government Affairs Department at Family Research Council.