SUPREME COURT DODGES ANOTHER RELIGIOUS LIBERTY FIGHT.

• Author: Shackford, Scott
• Position: RELIGION

THE SUPREME COURT once again sidestepped a conflict between religious freedom and anti-discrimination laws when it ruled in June that Philadelphia officials violated the First Amendment by requiring a Catholic charity to certify same-sex couples as foster parents.

Philadelphia refused to renew a contract with Catholic Social Services because the organization would not comply with the city's anti-discrimination laws by serving same-sex couples. That decision, six justices concluded in Fulton v. Philadelphia, amounted to an unconstitutional burden on the free exercise of religion.

The ruling hinged on the fact that the city's foster care contracts gave the commissioner of the Department of Human Services "sole discretion" to grant exceptions to the city's nondiscrimination rules. In the 1990 case Employment Division v. Smith, the Court held that the First Amendment's Free Exercise Clause does not require religious exemptions from "neutral, generally applicable" laws. But in this case, the majority said, the commissioner's discretion meant that Philadelphia's policy was not generally applicable.

The decision bears some resemblance to the Court's 2018 ruling in Masterpiece Cakeshop v. Colorado Civil Rights Commission, which involved a baker who refused to sell gay wedding cakes because he had religious...