On June 17, the U.S. Supreme Court unanimously ruled in Fulton v. City of Philadelphia that the city of Philadelphia discriminated against Catholic Social Services (CSS), a Catholic foster-care agency, when they cut CSS from their foster provider list because of their religious convictions on human sexuality, marriage, and the nuclear family. In the 9-0 decision, the Court decided that Philadelphia violated CSS’s constitutional rights to Free Exercise by requiring that it certify couples who are living outside the Church’s teaching, including same-sex couples and unmarried couples, to foster children from their agency.

In addition to upholding CSS’s right to freedom of expression, the Fulton decision promotes the best interest of the children of Philadelphia, who now will have more options for a loving home.

As Chief Justice Roberts wrote in the majority opinion:

“Maximizing the number of foster families and minimizing liability are important goals, but the City fails to show that granting CSS an exception will put those goals at risk. If anything, including CSS in the program seems likely to increase, not reduce, the number of available foster parents.”

In 2018, Philadelphia removed CSS from its program just days after putting out an urgent call for 300 more foster parents. That came a year after Catholic Social Services placed 226 children in foster homes. The city hurt prospects for hundreds of children to be placed in loving homes because it disagreed with the Catholic Church’s teaching on marriage. This is not placing kids first.

The Fulton decision is particularly remarkable because of its unanimity and is an important victory for religious freedom! However, there is still work to be done, as it does not overturn the 1990 decision in Employment Div., Dept. of Human Resources of Ore. v. Smith. Smith ruled that laws which are neutral and generally applicable do not violate the Free Exercise Clause even if they burden religious liberty. Smith’s difficult legal standard for religious liberty claims is ultimately what prompted Congress to pass the Religious Freedom Restoration Act (RFRA) in 1993. Because of the narrow scope of today’s ruling, the city of Philadelphia may be able to simply re-write its law and still exclude CSS from offering fostering services unless they adopt government-mandated beliefs, likely resulting in additional litigation.

The forthcoming legal battle is what Justices Samuel Alito, Clarence Thomas and Neil Gorsuch, who did not join the majority opinion, argue is impending. In their concurring opinions, the three Justices argued that Fulton is a missed opportunity to examine how the First Amendment applies to religious liberty cases.

As Justice Gorsuch wrote in his concurring opinion:

“[T]he majority seems determined to declare there is no “need” or “reason” to revisit Smith today… But tell that to CSS. Its litigation has already lasted years—and today’s (ir)resolution promises more of the same… The City has made clear that it will never tolerate CSS carrying out its foster-care mission in accordance with its sincerely held religious beliefs. To the City, it makes no difference that CSS has not denied service to a single same-sex couple; that dozens of other foster agencies stand willing to serve same-sex couples; or that CSS is committed to help any inquiring same-sex couples find those other agencies. The City has expressed its determination to put CSS to a choice: Give up your sincerely held religious beliefs or give up serving foster children and families. If CSS is unwilling to provide foster-care services to same-sex couples, the City prefers that CSS provide no foster-care services at all. This litigation thus promises to slog on for years to come, consuming time and resources in court that could be better spent serving children.”

And religious liberty legal battles are indeed on their way back up to the High Court. For instance, just days before the Fulton decision, a Colorado trial court also ruled on a religious liberty case, Scardina v. Masterpiece Cakeshop. In Scardina, the court decided that Jack Phillips, the Masterpiece Cakeshop baker who won a limited religious liberty victory at the U.S. Supreme Court in 2018, violated the state of Colorado’s anti-discrimination law by politely refusing to bake a gender transition cake that is contrary to his well-founded convictions on human sexuality.

All Americans have the freedom to live according to their religious beliefs, as the First Amendment states. Adoption and foster care providers are no different. But the Colorado legislature, courts, and governor are on a different path.

Just this April, Colorado Governor Jared Polis signed into law House Bill 21-1072 “Equal Access Services for Out-of-Home Placements,” which will prohibit foster and adoption service providers that receive state funding from having certification policies that align with their religious beliefs. Just as with the city of Philadelphia, the new Colorado law does not contain an exemption for religious organizations, and therefore could be vulnerable to litigation on similar grounds.

America is a pluralistic society, and no government entity should punish those with well-founded convictions on marriage and human sexuality. In the case of Fulton, this is especially true when punishment necessarily means more children with no home at all. Thanks to Fulton, the constitutional right to freedom of expression was upheld for Catholic Social Services and hundreds of children have more opportunity to be placed in loving homes.