Fulton v. Philadelphia
Headline: Court rules Philadelphia cannot bar a Catholic foster agency from contracting unless it certifies same-sex couples, protecting the agency’s religious refusal while preserving foster placements and prompting further litigation over exemptions.
Holding: The Court held that Philadelphia’s refusal to renew or sign a foster-care contract with Catholic Social Services unless it certified same-sex couples violated the Free Exercise Clause because the contract allowed discretionary exemptions.
- Stops Philadelphia from excluding a religious foster agency solely for refusing to certify same-sex couples.
- Allows the agency to continue placing children while the City pursues other options.
- May force cities to change contract language or grant religious accommodations under strict scrutiny.
Summary
Background
Catholic Social Services (CSS) is a religious foster agency that has worked with Philadelphia for decades. CSS holds the belief that marriage is a sacred bond between a man and a woman and therefore will not certify unmarried couples or same-sex married couples as foster parents. After a 2018 news story and an investigation, the City stopped referring children to CSS and said it would not renew contracts unless CSS agreed to certify same-sex couples. CSS and three foster parents sued, saying the City’s actions violated the First Amendment.
Reasoning
The Court considered whether the City’s refusal to contract with CSS burdened the agency’s religious exercise. The Court found a burden and explained that the City’s standard contract was not “generally applicable” because section 3.21 explicitly permits discretionary exceptions at the Commissioner’s “sole discretion.” That invitation to grant individualized exemptions means the City could not refuse religious hardship exemptions without a compelling reason. The Court also held that the City’s Fair Practices Ordinance did not cover foster certification because certification is a selective, customized process rather than a public accommodation open to the general public. Because the contract’s nondiscrimination rule was not generally applicable, the Court applied strict scrutiny and found the City had not shown a compelling interest in denying an accommodation. The Court reversed the Third Circuit and held the City violated the Free Exercise Clause. It did not decide the free speech claim.
Real world impact
The ruling means Philadelphia may not refuse to work with CSS solely because it will not certify same-sex couples; CSS may continue to provide foster services consistent with its beliefs unless the City can meet strict scrutiny. The decision sends questions about broader contract language back for further proceedings.
Dissents or concurrances
Several Justices agreed the City acted unconstitutionally but wrote separately. Some urged the Court to overrule or reconsider Smith; others preferred narrower reasoning.
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