Fulton v. City of Philadelphia
Issues
Under the First Amendment, can a city prevent a private foster care agency from participating in the city’s foster care system because that agency refuses to agree to a non-discrimination policy that requires it to consider potential same-sex or unmarried foster parents?
This case asks the Court to balance First Amendment rights with the government’s interest in promoting equality. Petitioner Catholic Social Services (“CSS”) contracted with Respondent City of Philadelphia (“the City”) to provide foster care and choose foster parents for the City’s youth; however, CSS objected to the inclusion of a non-discrimination clause in its contract that required it to consider LGBT+ individuals as foster parents. CSS argues that the City’s non-discrimination clause specifically targets it as a Catholic organization, thereby infringing upon its religious beliefs under the Free Exercise Clause and compelling it to endorse LGBT+ relationships in contravention of the Free Speech Clause. The City counters that the non-discrimination clause is a policy that applies to all contractors who undertake governmental work, and that CSS cannot claim to use religious freedom to undermine the City’s strong interest in preventing discrimination. The Supreme Court’s decision in this case will implicate laws impacting religious freedom, LGBT+ issues, and equal protection.
Questions as Framed for the Court by the Parties
(1) Whether free exercise plaintiffs can only succeed by proving a particular type of discrimination claim—namely that the government would allow the same conduct by someone who held different religious views—as two circuits have held, or whether courts must consider other evidence that a law is not neutral and generally applicable, as six circuits have held;
(2) whether Employment Division v. Smith should be revisited; and
(3) whether the government violates the First Amendment by conditioning a religious agency’s ability to participate in the foster care system on taking actions and making statements that directly contradict the agency’s religious beliefs.
Catholic Social Services (“CSS”) was established in 1797 in Philadelphia (“the City”), Pennsylvania as a religious non-profit foster care service. Fulton v. City of Philadelphia at 12. Although affiliated with the Archdiocese of Philadelphia, CSS is regulated both by the state of Pennsylvania and the City. Id. at 12–13.
Written by
Edited by
The authors would like to thank Professor Nelson Tebbe for his insights into this case.
Additional Resources
- James Esseks, The Next Big Case on LGBTQ Rights is Already Before the Supreme Court, Washington Post (Oct. 9, 2020).
- Mark J. Stern, SCOTUS May Give Foster Care Agencies a Right to Refuse Same-Sex Couples, Slate (Feb. 24, 2020).
- Rob Abruzzese, Philadelphia Case Could Have Large Implications for Foster Children in New York, State Bar Association Says, Brooklyn Daily Eagle (Aug. 21, 2020).