Seyfarth Synopsis: The narrow but unanimous ruling in Fulton v. City of Philadelphia does little to clarify for employers the tensions between religious liberties and LGBTQIA anti-discrimination rights.

The Supreme Court ruled unanimously last week in Fulton v. City of Philadelphia that the First Amendment of the Constitution exempted a Catholic social services agency from Philadelphia’s non-discrimination ordinance for government contractors.  In initiating this litigation, the agency asked the justices to revisit a 30-year-old precedent—set forth in Employment Division v. Smith, 494 U.S. 872 (1990)—governing religious exemptions from “neutral laws of general applicability” that do not expressly target religion.

In a decision penned by Chief Justice Roberts, the Court held the city’s decision to cease placing children with the agency due to its refusal to work with same-sex couples could not survive strict scrutiny, because the protection of these same-sex couples from discrimination under the specific ordinance was not a government interest compelling enough to impair the agency’s First Amendment Rights.  The ruling focuses narrowly on the terms of Philadelphia’s contract with foster care agencies—a contract which forbids discrimination on the basis of, among other things, sexual orientation.  The contract, however, also allows city officials to make exceptions to otherwise mandatory requirements, which is ultimately what doomed the city’s position that the Catholic agency must screen same-sex couples.

The unanimous decision was tied to case-specific facts.  For that reason, it is easy to conclude that the Fulton decision is limited to its facts and thus unlikely to have many direct implications in employment law, or perhaps even outside of Philadelphia.

That said, the decision may ultimately have wide reaching effects.  This is especially true when taken in conjunction with the Court’s ruling in Burwell v. Hobby Lobby, which allows privately held corporations to refuse employees access to birth control pursuant to the Religious Freedom Restoration Act (RFRA).  Read together, these cases could be used to justify private employers using the rationale of religious liberty in order to evade otherwise applicable anti-discrimination laws. 

Another potentiality evident from this decision, is that the Court in the near term will overturn Smith.  Indeed, the concurring opinions proffered by Justices Barrett, Alito, and Gorsuch suggest there are likely enough votes on the current Court to overturn Smith.  A reversal of this decision, could lead to a significant prioritization of notions of religious liberty above other laws.  

We are continuing to monitor this line of cases, and will continue to provide updates.  For more information on this topic, please contact the authors, your favorite Seyfarth Attorney, or any member of Seyfarth’s Labor & Employment Team.