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Research Service
Supreme Court Considers Overruling Free
Exercise Precedent in Fulton v. Philadelphia
November 9, 2020
On November 4, 2020, the Supreme Court heard oral argument in Fulton v. City ofPhiiadelphia, an
appeal asking the Court to revisit foundational precedent interpreting the First Amendment's Free
Exercise Clause. The November session of oral arguments was the first fornewly confirmed Justice Amy
Coney Barrett, who could play a key role in resolving this appeal. In Fulton, a Catholic foster-care agency
raised religious objections to complying with Philadelphia's policies prohibiting contractors from
discriminating on the basis of sexual orientation. The City had stopped referring foster children to the
agency after discovering it would not work with same-sex couples as foster parents. The lower courts
rejected the agency's constitutional claims, citing Employment Division v. Smith, a 1990 case in which the
Supreme Court held that the Free Exercise Clause generally will not excuse individuals from complying
with valid, neutral, and generally applicable laws. The Court agreed to consider whether to revisit Smith
when it granted the petition for certiorari in Fulton. If the Court overrules Smith, it would likely make it
easier for religious entities to seek religious exemptions from generally applicable laws. The case could
have significant implications not only for other foster care and adoption agencies seeking to avoid
complying with local nondiscrimination policies, but also for other businesses with religious objections to
serving certain customers or events.
This Legal Sidebar provides an overview of the constitutional jurisprudence at issue in this case, as well
as a discussion of the specific facts and arguments raised in Fulton, including the Justices' questioning at
oral argument. It concludes by discussing the potential implications of the case for Congress.
Legal Background
The First Anendment's Free Exercise Clause provides that the government shall make no law ...
prohibiting the free exercise of religion. The Supreme Court has said the government generally may not
target[] religious beliefs as such. If a law restricts religious practices because of their religious
motivation or discriminates based on religious status, it will be subject to strict scrutiny, meaning the law
is invalid unless the government can show it is justified by a compelling interest and is narrowly tailored
to advance that interest. In 2018, for example, the Supreme Court held in Masterpiece Cakeshop, Ltd. v.
Colorado Civil Rights Commission that a state violated the Free Exercise Clause when it applied its
Congressional Research Service
https://crsreports.congress.gov
LSB10551
CRS Legal Sidebar
Prepared for Membersand
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