Philadelphia Foster Care Case Challenges Justice Scalia’s Most Controversial Opinion

Philadelphia Foster Care Case Challenges Justice Scalia’s Most Controversial Opinion


On Nov. 4, the Supreme Court heard oral argument in Fulton v. City of Philadelphia, a challenge to the city’s exclusion of Catholic Social Services from participation in the foster care system due to its views on same-sex behavior. This may sound like a run-of-the-mill battle in the culture war, but there’s a lot more to it.

Fulton is part of a broader effort to hold the government to a higher standard whenever it limits our freedom—from our ability to speak, work, exercise religion, or simply order our lives how we want. A controversial 30-year-old ruling written by Justice Antonin Scalia, Employment Division v. Smith, stands in the way, and Fulton asks the Supreme Court to overturn it.

What Scalia’s Smith Decision Was All About

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In Smith, the Supreme Court considered a free-exercise challenge to state’s denial of unemployment benefits to two Native American drug counselors who were fired for participating in religious peyote ceremonies. The drug counselors believed they were entitled to an exemption

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