Re-Evaluating <i>Fulton v. City of Philadelphia</i>: A “Narrow” “Wisp” of a Decision or Free Exercise “Bedrock?”

In Fulton v. City of Philadelphia (2021), a unanimous Supreme Court held that Philadelphia violated the Free Exercise Clause by excluding Catholic Social Services from participating in its foster program because CSS would not certify same-sex couples. Both supporters and critics of the Court’s decision publicly characterized the decision as “narrow” and noted that Philadelphia (and other governments) can easily sidestep Fulton and continue excluding religious providers from foster and adoption programs. Four years later, the evidence shows that Fulton is anything but narrow. In Philadelphia and in other jurisdictions, Fulton has played a strong role in ending litigation against religious foster and adoption providers. And in a broader array of religious liberty cases, Fulton has turned out to be—as the Ninth Circuit recently put it—a highly influential “bedrock” of Free Exercise jurisprudence. This article traces the reasons for the initial view that Fulton would be narrow. It then argues that subsequent developments show the decision to be deeply influential and important for Free Exercise law both in the foster context and in religious liberty disputes more broadly.