Fulton v. City of Philadelphia: First Amendment Rights Applied to Social Services

Guest post by Magdalene Ellonardo

In the City of Philadelphia (“City”), the City contracts out the certification of foster families to private agencies, of which Catholic Social Services (“CSS”) is one. Because CSS is an extension of the Catholic Church, it holds the religious belief that marriage is a sacred bond between a man and woman. Because it considers any certification to be an endorsement of their relationship, CSS refuses to certify any unmarried couples or same-sex married couples as foster families. However, there are other agencies in Philadelphia that will certify same-sex couples, and no same-sex couple has ever sought certification from CSS. After a newspaper in 2018 reported on these CSS practices, the City conducted an investigation. The City informed CSS that if it continued to refuse to certify same-sex couples, then the City would no longer refer children to the agency or enter into any future foster care contracts. CSS filed suit against the City claiming that the City’s referral freeze violated the Free Exercise and Free Speech Clauses of the First Amendment.

On June 17, 2021, the Supreme Court ruled in favor of CSS. The Free Exercise Clause of the First Amendment provides that “Congress shall make no law…prohibiting the free exercise” of religion. The Supreme Court found that the City did hinder CSS’s religious exercise by forcing it to choose between its mission or practices that are inconsistent with its religious beliefs.

In Employment Division, Dept. of Human Resources of Oregon v. Smith, the court held that laws that burden religion are not subject to strict scrutiny under the Free Exercise Clause as long as they are neutral and generally applicable. A law is not generally applicable if it provides for individualized exceptions. In this regard, the City contested that CSS’s practice violated a section of its standard foster care contract that prohibited a provider from rejecting a child or family from services based on their sexual orientation. However, this section allows for exceptions at the “sole discretion” of the Commissioner. This exemptions clause renders the City’s policies not generally applicable.

Additionally, the City argues that CSS’s practices violate Philadelphia’s Fair Practices Ordinance, which prohibits denying ‘public accommodations’ discriminatorily. Foster care agencies performing certifications are not public accommodations because certifications are not easily accessible, and foster families must meet certain requirements in order to be certified. Therefore, this ordinance does not apply.

Because this law is not generally applicable, the Court applied strict scrutiny. Strict scrutiny is a standard used by courts when determining whether to uphold a discriminatory law. Under strict scrutiny, a law is only upheld if it is proven necessary to achieve a compelling government purpose; the government must have a truly significant reason for discriminating. The City proposes that its interests are to maximize the number of foster parents, protect the City from liability, and ensure equal treatment of prospective foster parents and foster children. The City failed to provide sufficient evidence that granting CSS this exception would limit the number of foster families or open themselves up to liability. The City cannot argue that in order to maintain equality, it must reject all exceptions because it already has a system of exceptions in place. It has offered no persuasive reason as to why these exceptions can apply to other circumstances, but not to CSS.

Therefore, the Court concluded that this referral freeze violated the Free Exercise Clause and would not be upheld so there was no need to consider the Free Speech Clause. The judgment of the district court and court of appeals was overturned, and the case was remanded.

The concurrences discuss the validity of Smith, and whether the majority should have used this ruling to overturn Smith.

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