Fulton v. City of Philadelphia Hearing

September 21, 2021

On November 4 the U.S. Supreme Court heard a case (Fulton v. City of Philadelphia) that will determine whether taxpayer-funded child welfare services agencies have a right to discriminate against LGBTQ people.

Background from Family Equality
In May 2018, Catholic Social Services (“CSS”), a faith-based foster care agency filed a lawsuit against the City of Philadelphia with whom it had a contract to provide public child welfare services. Despite the nondiscrimination provision in the City’s contract with CSS (and all other contractors), CSS refused to license same-sex couples to be foster parents based on religious objections.

When the City told CSS that it had to comply with the nondiscrimination requirement or its contract would not be renewed, CSS sued the City, claiming that requiring CSS to abide by the generally applicable nondiscrimination requirement for contractors violated the free exercise of religion, even though CSS chooses to be a contractor and accept taxpayer funds to provide the public service of child welfare. The federal trial court and the federal appeals court rejected CSS’s argument and ruled for the City, finding that CSS’s religious Free Exercise rights were not violated. CSS appealed to the United States Supreme Court, and in February 2020, the Court agreed to take the case.

The questions before the Court (as written by CSS) are:

  1. Whether free exercise plaintiffs can only succeed by proving a particular type of discrimination claim — namely that the government would allow the same conduct by someone who held different religious views — as two circuits have held, or whether courts must consider other evidence that a law is not neutral and generally applicable, as six circuits have held?
  2. Whether Employment Division v. Smith should be revisited?
  3. Whether a government violates 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?

A decision is expected by June 2021.

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