Civil and Human Rights

RELEASE: In Fulton, Supreme Court Avoids Overruling Longstanding Precedent, While Siding With Religious Organization That Discriminates Against LGBTQ Couples 

WASHINGTON – Following the Supreme Court’s ruling today in Fulton v. City of Philadelphia, Constitutional Accountability Center President Elizabeth Wydra issued the following reaction:

While the Supreme Court today fortunately did not take the bold step many conservatives were urging—overruling Employment Division v. Smith, longstanding precedent that allows generally applicable laws to apply even when there is an incidental burden on religious free exercise—this narrow ruling still allows for Catholic Social Services to discriminate against LGBTQ couples in this instance and leaves serious questions about further challenges down the road.

The Court majority avoided the Smith question by determining that the Philadelphia law prohibiting discrimination against married LGBTQ couples in this case was not a “generally applicable” law because it allowed for some discretion in selecting foster parents. This, fortunately, saves for the moment the ability of states and localities to enforce antidiscrimination provisions that are formulated to apply across the board.

But, as the concurring opinion by Justice Alito points out, it also leaves open the question of how the Court will rule when it cannot sidestep the Smith question as it did in this case. As challenges that pit religious freedom against civil rights for LGBTQ people continue to make their way before the Court, today’s narrow ruling unfortunately does not remove the ominous clouds on the horizon.

When the Court does eventually reach the issue head on, it should respect the Constitution’s text and history that make clear individuals’ religious views can never provide a justification for violating neutral, generally applicable nondiscrimination provisions. As our brief on behalf of First Amendment scholars in this case showed, Founding-era history supports the view that the Free Exercise Clause was not understood to have conferred a broad religious exemption from compliance with civil laws.

When the Court does directly take on these broader questions of religious objections to generally applicable civil rights laws, we hope that, unlike today, the Court will meaningfully grapple with the real-world reasons behind the government’s compelling interest in enforcing antidiscrimination laws: LGBTQ people and families who deserve to live their lives with equal dignity and equal liberty.

It is important to acknowledge that the fight to uphold equality continues, and that many more legal battles remain ahead.



CAC case page in Fulton v. City of Philadelphia, with brief filed on behalf of First Amendment scholars in support of the City:

CAC BLOG: “The Fate of Anti-Discrimination Laws Lies With the Supreme Court,” Becca Damante, August 21, 2020:

CAC RELEASE: Challengers’ Argument In Fulton Could “Require Governments To Allow All Manner Of Discrimination,” November 4, 2020:


Constitutional Accountability Center is a think tank, public interest law firm, and action center dedicated to fulfilling the progressive promise of the Constitution’s text and history. Visit CAC’s website at


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