Roberts’ second argument was that foster care placement is not a “public accommodation.” A public accommodation, he said, is one that provides a benefit to the “general public.”

“Certification as a foster parent, by contrast, is not readily accessible to the public,” wrote Roberts. “It involves a customized and selective assessment that bears little resemblance to staying in a hotel, eating at a restaurant, or riding a bus.”

Paths of least resistance

What Roberts did not do was tackle a 1990 Supreme Court decision (Employment Division v. Smith) that conservatives, like Alito, hoped the court would overturn.

In Smith, the Supreme Court ruled that a state could deny unemployment benefits to a person fired for using illegal drugs as part of a religious ceremony. It said a state law denying benefits to employees fired for “misconduct” (illegal drug use) was generally applicable to all persons. As then Justice Antonin Scalia, who wrote Smith, put it, society would be “courting anarchy” to allow “constitutionally required religious exemptions from civic obligations of almost every conceivable kind—ranging from compulsory military service to the payment of taxes, to health and safety regulation such as manslaughter and child neglect laws, compulsory vaccination laws, drug laws… and laws providing for equality of opportunity for the races.”

Many people today find this idea [same-sex couples should not be foster parents] not only objectionable but hurtful… Nevertheless, protecting against this form of harm is not an interest that can justify the abridgment of First Amendment rights….”
JUSTICE Samuel Alito,

Chief Justice Roberts wrote in Fulton that, “This case falls outside Smith because the City has burdened the religious exercise of CSS through policies that do not meet the requirement of being neutral and generally applicable.” Philadelphia’s non-discrimination policies were not generally applicable, he said, because they included the possibility of gaining an exemption, and the city denied an exemption to CSS for its religious hostility to same-sex couples.

Arguing that Smith should be overturned, Alito said there was “confusion about the meaning of Smith’s holding on exemptions from generally applicable laws.” He said Smith was “wrongly decided,” that Scalia’s concern about “anarchy” was “not well founded,” and that CSS’s policy simply “expresses the idea that same-sex couples should not be foster parents….”

“Many people today find this idea not only objectionable but hurtful,” wrote Alito. “Nevertheless, protecting against this form of harm is not an interest that can justify the abridgment of First Amendment rights….”

“Many core religious beliefs are perceived as hateful by members of other religions or nonbelievers,” said Alito.

“Proclaiming that there is only one God is offensive to polytheists, and saying that there are many gods is anathema to Jews, Christians, and Muslims.”

“While CSS’s ideas about marriage are likely to be objectionable to same-sex couples,” said Alito, “lumping those who hold traditional beliefs about marriage together with racial bigots is insulting to those who retain such beliefs.”

“I am amazed we dodged this bullet again.
I am not sure how long we can keep dodging it,
but for now, we live to fight again another day.”
Shannon Minter of the National Center for Lesbian Rights

He then cited the Supreme Court’s 2015 decision in Obergefell v. Hodges (striking down state bans on marriage for same-sex couples) and the Masterpiece decision. He said the majority in Obergefell “refused to equate traditional beliefs about marriage…with racism” and “promised” that religions could “continue to advocate with utmost, sincere conviction that, by divine precepts, same-sex marriage should not be condoned.”

“An open society,” said Alito, “can keep that promise while still respecting the ‘dignity,’ ‘worth,’ and fundamental equality of all members of the community.”

Dodging bullets

James Essex, director of the national ACLU’s LGBTQ & HIV Project, said it’s very important in Fulton that “the court did not rule (as the agency asked) that there is a constitutional right for government contractors such as the foster care agency to discriminate in their work for the city based on religious beliefs.”

Fulton, he said, “means that governments can and should continue to enforce their non-discrimination laws in all contexts.”

Essex noted that, since the Masterpiece decision, anti-LGBT activists have “tried to get courts to rule that businesses, health care providers, employers, and government contractors all have a constitutional right to discriminate because of their religious objection to LGBTQ people.”

The ruling in Fulton, he said, represents the “second time that the [Supreme Court] has refused to do so….”

Shannon Minter of the National Center for Lesbian Rights said one might even consider it the third time, noting that, in 2010, the Supreme Court, in Christian Legal Society v. Martinez, upheld a California college’s policy banning discrimination based on sexual orientation in campus group membership. A Christian student group at a public law school in San Francisco had claimed a free exercise right to exclude LGBT students.

“Anti-LGBTQ groups have tried twice now (really three times, going back to the Christian Legal Society case of 2010) to get the Supreme Court to recognize a constitutionally compelled exemption to anti-discrimination law,” said Minter, “and the court has declined both (or all three) times. That is a significant victory for LGBTQ people.”

“I am amazed we dodged this bullet again,” said Minter. “I am not sure how long we can keep dodging it, but for now, we live to fight again another day.”

But Essex says “any loss—even this narrow one—will be painful to the LGBTQ community, particularly in the wake of a record number of anti-LGBTQ bills moving in state legislatures this year.”

“The legal fight about whether, and in what context, the Constitution gives some people a right to discriminate is one of the most important legal issues for the LGBTQ community,” said Essex in his analysis of the Fulton decision. “It has consequences for how every single non-discrimination law and regulation operates and could allow all of the civil rights laws that our community struggled for decades to establish to be undermined and side-stepped and ultimately rendered close to irrelevant.”

The conflict between religious-based hostility to LGBT people and laws prohibiting discrimination against LGBT people was neither resolved nor reduced by the Fulton decision.

The conflict between religious-based hostility to LGBT people and laws prohibiting discrimination against LGBT people was neither resolved nor reduced by the Fulton decision.

While Philadelphia City Solicitor Diana Cortes said the city would work with the CSS, as the Supreme Court decision requires, she added, “The City will not waver from our commitment to ensuring equality for all Americans, including LGBTQ families.” Some legal observers expect the city to eliminate the “exception” that Supreme Court relied upon in ruling for CSS. That could potentially send the same case back to the Supreme Court again.

The Masterpiece Cakeshop could end up back at the Supreme Court again, too. On June 15, a Colorado district court judge in Denver ruled, in Scardina v. Masterpiece, that Masterpiece owner Jack Phillips violated the state human rights law when he refused to bake a “gender reveal” cake for a transgender customer’s birthday, saying he had strong religious beliefs that a person cannot be transgender.

While Phillips is a “man of good faith religious convictions,” ruled Judge A. Bruce Jones (appointed by then Governor Bill Ritter, a Democrat), the state law prohibiting discrimination based on sexual orientation is a “neutral law of general applicability” that requires the baker not refuse service to a potential customer based on the customer’s sexual orientation.

“The anti-discrimination laws,” wrote Judge Jones, “are intended to ensure that members of our society who have historically been treated unfairly…are no longer treated as ‘others’.”

Numerous other cases around the country are also testing the issue of religious exercise versus non-discrimination laws. Many are challenging Trump administration regulations that sought to enable various health agencies, including foster care services, to claim religious beliefs to deny equal treatment to LGBT people. Some are challenging other Catholic foster care agencies. In Texas, for instance, a lesbian couple seeking to adopt unaccompanied refugee children applied to Catholic Charities in Fort Worth but were told they did not qualify because the couple did not “mirror the holy family.”

As Justice Gorsuch said at the end of his concurring opinion, disappointed that the majority had not struck down Smith, “These cases will keep coming until the Court musters the fortitude to supply an answer.”

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