Fulton v. City of Philadelphia

      In March 2018, a reporter from the Philadelphia Inquirer contacted Philadelphia’s Department of Human Services to inform him that they had learned through interviewing a same-sex couple that they had been turned down by two foster care agencies based on their sexual orientation.  Upon being informed a Human Services employee reached out to one of the agencies, Catholic Social Services (CSS), to remind them of the Philadelphia Fair Practices Ordinance.  This ordinance made it unlawful for public accommodations to be withheld from individuals based on their sexual orientation and issued CSS a new contract that included language barring them from refusing to give a foster care license to same-sex couples.  As a result of Catholic Social Services refusing to uphold the Fair Practice Ordinance, the city of Philadelphia suspended CSS’s contract with the city’s Office of Children and Families.  Consequently, CSS bought a lawsuit against the City of Philadelphia arguing that they were able to opt-out of the city’s nondiscrimination policy under the First Amendment.      

     On July 13th, 2018, the local district court ruled that CSS did not have the right to discriminate against same-sex possible foster parents based on their religious belief and their request for a preliminary injunction was dismissed.  Within the court documents, the judge found that the City was within its rights to enforce their contracted agencies to obey the Fair Practices Ordinance.  Especially since CSS is funded by taxpayer dollars and when an organization receives funding from the government that organization is required to follow governmental ordinances.  Additionally, the Supreme Court ruled that religious organizations receiving government funding may not support "inherently religious” activities.  CSS then appealed the district court’s decision to the U.S. Court of Appeals for the Third. And on April 22, 2019, the Third Circuit rejected Catholic Social Services argument and upheld the local district ruling.  The Third Circuit sided with the district court because they believe that religious beliefs are protected; however, that does not make religiously-based behavior exempt from neutrally applied legal requirements. 

     Catholic Social Services again appealed the decision to the Supreme Court and on November 4th, 2020, each side was able to take their arguments in front of the justices.  The questions that the court is faced with answering, as written by CSS is 

          “1. To succeed on their free exercise claim, must plaintiffs prove that the government would allow the same conduct that the government would allow the same conduct by someone who held different religious views, or only provide sufficient evidence that a law is not neutral and generally applicable?  2. Should the Court revisit its decision in Employment Division v. Smith?  3. Does the government violate 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?”

     Employment Division, Department of Human Resources of Oregon v. Smith, referred by CSS in their questions, is a case that argued in 1989 focused on two individuals working at a private drug rehabilitation facility took peyote, a hallucinogenic drug, as part of their religious ceremony at the Native American Church. As a result, the two counselors were fired and filed for unemployment benefits; the State denied their claim as they found the reason for their dismissal was listed as misconduct.  The counselors sued the State, and the Oregon Court of Appeals reversed the State’s decision and said they were entitled to unemployment benefits. The State appealed the decision to the Oregon Supreme Court who also sided with the counselors; and, as a result, the State appealed the decision once more and was allowed to present their case in front of the U.S. Supreme Court.  The Supreme Court ruled in favor of Oregon stated in the concurring opinion that the Free Exercise Clause permits the State to prohibit sacramental peyote use and deny unemployment benefits for individuals dismissed for that reason; this ruling is based on the fact that neutral laws do not burden free exercise. Employment Division v. Smith is the perfect case to use when thinking about Fulton v. City of Philadelphia.  The city of Philadelphia has a mandated ordinance prohibiting discrimination based on sexual orientation that is applied neutrally to all individuals and does not violate the Free Exercise Clause. 

     In my opinion, agree with the City of Philadelphia and the lower court’s ruling that CSS should not be permitted to discriminate against same-sex couples based on the Fair Practices Ordinance and the precedent set by Employment Division v. Smith.  The City’s ordinance does not violate the Free Exercise Clause as Catholics are not targeted by the policy at all, so I believe that CSS will have a difficult time proving that the city would allow for another religious organization to deny foster children based on their sexual orientation.  Furthermore, I do not believe that the government violated the First Amendment by making a religious agency follow a nondiscrimination policy even if it goes against the organization’s religious beliefs.  When a religious agency is being contracted and funded by the State, they are required to follow the same rules and regulations as if they were a part of the State.  Since Catholic Social Services decided to work with the state, they are required to follow state mandates.  I also agree with the ruling of Employment Division v. Smith as religious organizations are not above state statutes, similarly to how Reynolds was not above the statute prohibiting bigamy (Reynolds v. United States). Using both cases as precedent, though the Supreme Court is not committed to precedent, for this ruling, there is no reason to believe that the Supreme Court would side justly with CSS.  And while I believe the Supreme Court should rule in favor of the City of Philadelphia it is difficult to say which way the court will swing on this ruling given the makeup of the Justices, there is a majority of justices who tend to lean more conservatively which opens the door to a reversal of the Third Circuit’s decision and a favorable ruling for Catholic Social Services.