Religious liberty advocates won another victory at the United States Supreme Court on Thursday. In a 9-0 decision, the Court ruled, in Fulton v. City of Philadelphia, the city could not discriminate against Catholic Social Services by forcing it to place foster children with same-sex couples. The grounds were limited, so the win was not a turning point, but neither the success nor the unanimity should be discounted.

Like many cities, Philadelphia uses public and private resources for foster care. It enters into an annual contract with some private parties, including Catholic Social Services (CSS). CSS, according to Catholic teaching, holds that marriage is a sacred union between one man and one woman. While willing to place children with single homosexuals and lesbians, CSS declined to place children with unmarried couples, regardless of their sexual orientation. No same-sex couple ever attempted to obtain certification from CSS. Had it happened, the agency would have referred the applicants to the 20 plus other agencies that had no such qualms. Upon learning CSS would not provide such certification, through a media report, Philadelphia did not renew the contract, and said it would only do so once the agency agreed to certify same-sex applicants. CSS filed suit, arguing the referral freeze was a violation of the organization’s Free Speech and Free Exercise rights protected by the First Amendment. The District Court denied injunctive relief, ruling the city’s actions were religiously neutral and generally applicable, and thereby appropriate under Employment Division v. Smith. The Third Circuit affirmed and CSS appealed.

Chief Justice Roberts wrote the Court’s opinion. The city’s actions clearly burdened CSS’s religious exercise because the entity was forced to choose between its mission and its religious beliefs. While Smith requires religious neutrality, the Court ruled in Fulton that Philadelphia’s actions were intolerant toward religion. This sort of animosity triggers a strict scrutiny test, where Philadelphia, to survive, must demonstrate a compelling interest and its discrimination must be narrowly tailored (as in Lukumi).

Philadelphia claims it has a compelling interest to maximize the number of foster families, reduce its legal liability, and provide equal treatment of both parents and children. The Court finds the first two interests as less than compelling. While the third carries weight, the Court cannot fathom why Philadelphia would refuse to offer an exemption to CSS when such exemptions are available to others. Roberts concludes the Court’s opinion by stating:

As Philadelphia acknowledges, CSS has “long been a point of light in the City’s foster-care system.” CSS seeks only an accommodation that will allow it to continue serving the children of Philadelphia in a manner consistent with its religious beliefs; it does not seek to impose those beliefs on anyone else. The refusal of Philadelphia to contract with CSS for the provision of foster care services unless it agrees to certify same-sex couples as foster parents cannot survive strict scrutiny, and violates the First Amendment.

CSS, along with Justices Alito, Gorsuch, and Thomas, urged the Court to overturn the Smith standard, but six justices (Roberts, Barrett, Kavanaugh, Kagan, Breyer, and Sotomayor) disagreed. The Court’s majority opinion reasoned Fulton was not the place to do this since Philadelphia’s actions did not meet Smith‘s criteria. If there is a weakness in the majority opinion, it is here. The Court’s analysis for why Philadelphia’s actions were neither neutral nor general is not terribly persuasive.

Justice Barrett files a concurring opinion, joined by Justice Kavanaugh and (except for the first paragraph) Justice Breyer. The brief note is an important contribution to the debate surrounding religious liberty, and it suggests the Roberts Court currently finds itself of three minds when it comes to Free Exercise. Roberts, Kagan, and Sotomayor seem mostly pleased with where the law stands, while Barrett signals displeasure with Smith, but is cautious about moving forward. If Smith were overturned, Barrett is concerned about what could replace it. The historical record yields few answers. A firm, categorical approach, like the one in Sherbert, where strict scrutiny would be triggered when a religious burden exists, may not be workable, especially when free exercise runs into conflict with speech and assembly. Since Philadelphia had the opportunity to provide exemptions, but did not do so, strict scrutiny was properly brought to bear here. Given that, Barrett is fine with the result in Fulton, but her note suggests future cases may find her more willing to overturn Smith, but only if a suitable alternative presents itself.

Alito, in his concurring opinion, attacks this issue more directly. He is thoroughly dissatisfied with Smith and he wants the Court to overturn it. He attacks, in particular, the majority’s assertion that by refusing to grant an exemption, when one is available, the city has run afoul of the Constitution. As Alito notes, if Philadelphia wants to bypass the Court, it must only eliminate the possibility of exceptions. Smith, Alito says, swept aside precedent and has not proven workable as a standard. For him, along with Gorsuch and Thomas, Smith conflicts with the text and history of the Free Exercise Clause and it should be overturned. It is a powerful argument, and it fits well with how Alito, Gorsuch, and Thomas read statutes and the Constitution.

While the Court may be of three minds on the Free Exercise Clause, the unanimous decision, that Philadelphia may not, as of now, muscle a Catholic charity into foregoing its religious beliefs, is important. The Court, in the face of a culture careening away from any traditional understanding of marriage, uniformly protected what LGBTQ+ advocates might call the stodgy, backward, or bigoted doctrines of the Catholic church. The Court, for now, protects CSS just as it protected Jack Phillips in Masterpiece Cakeshop. These are not small moments.

At the same time, the Court’s approach is minimalistic. Instead of robustly protecting CSS or Phillips, and the religious beliefs they bring into the public square, the Court’s narrow approach leaves room for government eventually to discriminate against religious actors so long as it does so coldly and without animus. By stripping away exceptions, as here, or by reining in vituperative public officials, as in Masterpiece, the Smith standard makes religion vulnerable, but it appears there are at least five or six justices willing to reconsider Smith. That, depending on the method used, would be a turning point in the Court’s approach to Free Exercise.