Fulton v. City of Philadelphia, Pennsylvania

     The case, Fulton v. City of Philadelphia, initiated in March of 2018 when Philadelphia’s Catholic Social Services (CSS) and a foster mother sued the city of Philadelphia after it decided to discontinue a foster care contract with CSS. Following this allegation that the CSS, (along with another one of Philadlphia’s foster care provider agents), was denying assistance to same-sex couples looking to become foster parents, the city inspected because this act violated against it’s non-discrimination policy. It found that CSS, the religious non-profit organization, did not serve same-sex couples for foster care under any circumstances, based on religious objections. Resultantly, Philadelphia terminated its distribution of foster children to the Catholic Social Services. In response, the CSS filed a lawsuit against the city in district court, claiming that under the Free Exercise of Religion clause of the First Amendment, they could willingly reject qualified same-sex couples, because, in doing this, they were practicing their own religious beliefs. CSS sought an order requiring the City to renew their contractual relationship while permitting it to turn away same-sex couples who wish to be foster parents. CSS argued that they should rightfully be able to continue their taxpayer-funded contracted work, even though their refusal of assistance to same-sex couples violated the state contract.

In July of 2018, the District Court ruled that discriminating against, and rejecting service to same-sex parents for foster care, in alliance to religious beliefs, was not lawful and denial CSS’s motion for a preliminary injunction against the City’s actions. They determined that the city of Philadelphia could rightfully implement non-discrimination policies via contracts with its agencies because this ensured the city’s goal of promoting inclusion and diversification in the foster care system, while simultaneously, offering these services to all taxpayers, whose tax dollars fund these contracts.  Next, in April of 2019, the 3rd Cir. Court of Appeals likewise dismissed CSS’ argument, dismissing the idea that, while safeguarded, religious-backed tactics are not exempt from the law, and in this specific case, Philadelphia’s neutral code prohibiting discrimination. Hence, on, April 22, 2019, the 3rd Cir. Court affirmed the U.S. District Court for the Eastern District of Pennsylvania's ruling. The CSS petitioned for a writ of certiorari to the Supreme Court from the 3rd Cir. Court’s refusal to grant the preliminary injunction and the Supreme Court granted certiorari in February of 2020.  Oral hearings are scheduled for November 2020.

In reaction to the status of Fulton v. City of Philadelphia, Christopher Riano, chair of the NYS Bar Association’s LGBTQ Committee, critically reviews the underpinnings of the Free Exercise Clause of the First Amendment, explaining how, although faith-based practices are supported, they do not provide leeway or an automatic exemption from government contracts. He emphasizes the city’s overarching goal in funding this foster care agency, saying that “LGBTQ couples represent a critical mass of foster parents, and antidiscrimination ordinances like the one in Philadelphia ensure that all qualified families can foster children.”

The fundamental issue and concern regarding the Fulton v. City of Philadelphia case is if government-funded foster care agencies, in this case CSS, are lawfully permitted to intentionally discriminate against same-sex couples for the sake of practicing their religious beliefs and values. In other words, conflict lies around if the government is violating CSS’ Free Exercise of Religion under the First Amendment by prohibiting a religious nonprofit from being a foster care program due to their religious convictions.

When personally reacting to this article, and case overall, I agree that CSS should not be permitted to discriminate against same-sex foster care couples due to the neutrality of the City’s ordinances in practice as well as its purpose and effect. Philadelphia has an ordinance, the Fair Practices Ordinance, which is general enough not to discriminate against just one religious group, catholics.  It treats all religious groups the same.  Thus, under the Free Exercise Clause one must show that it was treated differently because of its religion, not just that it was treated differently than others.  The Cities ordinance treated CSS the same as all other religious groups and was neutral and general in its application. This similar concern of neutrality surfaced in  Employment Division v. Smith (1987), which held that the Free Exercise Clause permits the State to prohibit sacramental peyote use and deny unemployment benefits to persons discharged for such use.  Therefore, neutral laws of general applicability do not burden free exercise.  Therefore, this case supports Philadelphia’s ordinance being in line with the Free Exercise clause of the First Amendment and supports the City’s position.

Furthermore, Philadelphia’s ordinance has an overriding interest for this neutrality in picking foster parents. Philadelphia’s intention in creating this ordinance is to promote fair, equal practices in the foster care system and allow all eligible, foster care parents to be considered regardless of their status in a protected class, for example, same-sex marriage. Prohibiting CSS’ involvement in foster care is the least restrictive means in order for the achievement of the compelling state interest, a non-discriminatory environment.

This reasoning is essential because if all action could be taken under the First Amendment, then a slippery slope scenario gains likeliness, and more actions would be subject to an exemption from law enforcement. CSS’ restriction should be prohibited as the law is neutral in practice and serves a beneficial societal purpose.