Case Name: Sharonell Fulton, et al v. City of Philadelphia, et al

Type of Case: Religious Liberty

Court: United States Supreme Court

Case Number:  19-123

Filed On: June 3, 2020

Current Status: U.S. Supreme Court held the “refusal of Philadelphia to contract with CSS for the provision of foster care services unless CSS agrees to certify same-sex couples as foster parents violates the Free Exercise Clause of the First Amendment.”

The Wisconsin Institute for Law & Liberty (WILL) filed an amicus brief in the U.S. Supreme Court on behalf of Jerome Listecki, Archbishop of the Archdiocese of Milwaukee, in Fulton v. City of Philadelphia, a landmark religious liberty case. WILL and Archbishop Listecki urge the Supreme Court to interpret the Free Exercise Clause of the First Amendment to provide robust protections to religious adherents by overturning Employment Division v. Smith, a case that made it difficult for those who object to laws that require them to violate their consciences to obtain relief in court.

The case involves a decision by the City of Philadelphia to forbid Catholic Social Services (“CSS”) from participating in foster care services as a result of the Catholic Church’s longstanding views on marriage and CSS’s unwillingness to provide written endorsements of same-sex couples for foster care. Whether the City of Philadelphia can penalize a religious entity precisely for acting on their sincerely held beliefs is the matter before the Court.

WILL’s Perspective: WILL President Rick Esenberg and Deputy Counsel Anthony LoCoco encourage the Court to reassess its approach to analyzing claims that a law impermissibly burdens a religious adherent’s conscience.

  • In the words of one Supreme Court justice, Smith “drastically cut back on the protection provided by the Free Exercise Clause.” The Court now has a chance to fix this mistake.
  • The Smith Court expressed some reluctance to provide strong conscience protections for fear it would lead to “anarchy.”  WILL points out that Wisconsin courts have long applied strict scrutiny to laws that burden the free exercise of religion, and no such pandemonium has resulted.


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