Fulton v. Philadelphia

Background

Catholic Social Services (CSS) is a religious foster agency in Philadelphia that will not certify unmarried or same-sex married couples because of its belief that marriage is between a man and a woman. After a news report, the City froze referrals to CSS and said it would not renew CSS’s foster-care contract unless CSS agreed to certify same-sex couples. The City pointed to a contract non-discrimination clause and the citywide Fair Practices Ordinance to justify its actions. No same-sex couple had asked CSS for certification, and other local agencies do certify same-sex couples.

Reasoning

The Court asked whether the City’s refusal to work with CSS violated the Free Exercise Clause. It held that it did. The Court found the City’s standard contract included a formal exception process in section 3.21 that gave discretionary exemptions and therefore meant the rule was not generally applicable under Smith. The Court also concluded the Fair Practices Ordinance did not apply because foster-parent certification is a selective, customized process and not a typical public accommodation. Because the contract burdened CSS’s religious exercise and was not generally applicable, the Court applied strict scrutiny and found the City lacked a compelling reason to deny an exemption.

Real world impact

Philadelphia may not exclude CSS from providing foster services simply because it will not certify same-sex couples. CSS can continue serving children in a way consistent with its religious beliefs unless the City can show a compelling, narrowly tailored interest. The Court did not decide the Free Speech claim. Local governments and contractors will likely revisit contract wording and exemption practices going forward.

Dissents or concurrances

Several Justices wrote separately. Some joined the judgment but urged the Court to revisit or overrule the Smith decision; others wrote narrower concurrences agreeing with the outcome but emphasizing different legal points.