Fulton v. City of Philadelphia

Fulton v. City of Philadelphia, 593 U.S. 522 (2021), was a United States Supreme Court case which held that the City of Philadelphia, Pennsylvania violated First Amendment rights of a Catholic foster care agency by refusing to renew the agency's contract unless it agreed to certify married same-sex couples as foster parents.

In a unanimous judgment on June 17, 2021, the Court ruled that the City's refusal due to the agency's same-sex couple policy violated the Free Exercise Clause . The Court decided the case on narrow grounds outside of the Supreme Court's prior decision in _Employment Division v. Smith _, which had previously ruled that neutral laws of general applicability could not be challenged for violating religious exemptions. Instead, in Fulton, the Court ruled that services like foster care contracting were not generally applicable under Smith, and thus were subject to strict scrutiny review. Because the City allowed for exceptions to be made in its anti-discrimination policy for foster care certification, the Court deemed the City's refusal to grant an exemption for Catholic Social Services as violating its free exercise of religion under Smith.

Contents

• 1 Background

• 2 Supreme Court

  • 2.1 Oral arguments

  • 2.2 Decision

• 3 Subsequent developments

• 4 Reactions

• 5 Scholarly Commentary

• 6 References

• 7 Further reading

• 8 External links

Background

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The Roman Catholic Archdiocese of Philadelphia runs the Catholic Social Services of the Archdiocese of Philadelphia (CSS), which has operated a foster care agency in Philadelphia for over 100 years. The foster care agency had been registered with the city up through 2018.

The Philadelphia Inquirer ran an article on March 13, 2018, which described the experience of a same-sex couple that went to an information session at Bethany Christian Service, which operated its own foster care service separate from CSS. At the session, the couple were told they would be wasting time because there was a policy for refusing to certify same-sex couples as foster parents. In following up, the reporter discovered that CSS held a similar policy, and had spoken to the city's Department of Human Services, which oversaw regulating foster care services, to notify them of these issues. The Commissioner of Human Services for the city, Cynthia Figueroa, followed up on the report with both CSS and Bethany Christian Services to confirm its veracity towards discrimination against same-sex couples. Figueroa also reviewed the standard with other registered foster care agencies for the city, many also who were also run by religious organizations, but found none of the others had similar restrictions against same-sex couples. Within a few days of the article's publication, the city suspended CSS's contract; the Bethany Christian Service had been able to work a deal to accept foster care from same-sex couples to maintain theirs.

CSS and several foster couples under CSS, including foster mothers Sharonell Fulton and Toni Simms-Busch, brought litigation against the city in the United States District Court for the Eastern District of Pennsylvania under the Free Exercise Clause and Establishment Clause of First Amendment to the United States Constitution , the Pennsylvania State Religious Freedom Restoration Acts , Free Speech Clause of the First Amendment and the Religious Freedom Restoration Act of 1993 , Pub. L. No. 103-141, 107 Stat. 1488 (November 16, 1993), codified at 42 U.S.C.  § 2000bb through 42 U.S.C.  § 2000bb-4 (also known as RFRA). CSS also had argued from the recent Supreme Court decision of _Masterpiece Cakeshop v. Colorado Civil Rights Commission _ that they had been subject to hostility from the city based on anti-religious prejudice. CSS asked the Court to overrule its 1990 decision _Employment Division v. Smith _ which held that "neutral and generally applicable laws" that only incidentally burden the free exercise of religion are subject to rational basis review . CSS also contended that their religious exercise was burdened by the city policy because the city allows race and disability-based exceptions within foster-care placements

The city countered that the precedent set by _Employment Division v. Smith _, alongside that other agencies in the city with similar religious backing accepted same-sex foster couples, supported the city's decision to terminate CSS's contract. The city of Philadelphia argued that the law is neutral and generally applicable, as required by Smith, and that the Court's ruling in CSS's favor would impinge on the civil rights of not only LGBT individuals but potentially those of such groups as religious minorities .

The District Court refused to grant a preliminary injunction against the city's contract termination, leading CSS to appeal to the Third Circuit . The Third Circuit unanimously ruled against CSS, upholding the city's claim against Employment Division v. Smith.

Supreme Court

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CSS and the foster parents petitioned to the Supreme Court to hear the case, which was certified in February 2020. Oral arguments occurred over telephone on November 4, 2020; Neal Katyal offered oral argument for the city.

Oral arguments

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On November 4, the Court heard oral arguments in Fulton. Two conservative members made clear that in their eyes the city of Philadelphia was not respectful of the religious beliefs held by Catholic Social Services (CSS). It appeared to Justice Brett Kavanaugh that Philadelphia was “looking for a fight” by taking an "absolutist and extreme position". Justice Samuel Alito noted that the case wasn't about same-sex couples in Philadelphia having the opportunity to be foster parents, but it's “the fact the city can’t stand the message that Catholic Social Services and the Archdiocese are sending by continuing to adhere to the old-fashioned view about marriage.”

The key issues discussed during oral argument were general applicability under Smith, whether CSS is running a government program or the recipient of a license to provide a service, comparison to other forms of discrimination, and why the case was before the Court when no same-sex couples had ever been turned down by CSS.

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