Fulton v. City of Philadelphia

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Fulton v. City of Philadelphia (Docket 19-123) is a pending case before the United States Supreme Court dealing with litigation over discrimination of local regulations based the Free Exercise Clause and Establishment Clause of First Amendment to the United States Constitution. The specific case deals with religious-backed foster care agency that were denied a new contract by the city of Philadelphia for their refusal to provide service to married same-sex couples on the basis of religious grounds.

Fulton v. City of Philadelphia
Seal of the United States Supreme Court
Argued November 4, 2020
Full case nameSharonell Fulton, et al., Petitioners v. City of Philadelphia, Pennsylvania, et al.
Docket no.19-123
Case history
Questions presented
  • To succeed on their free exercise claim, must plaintiffs prove 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?
  • 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?
  • Should the Court revisit its decision in Employment Division v. Smith?
Court membership
Chief Justice
John Roberts
Associate Justices
Clarence Thomas · Stephen Breyer
Samuel Alito · Sonia Sotomayor
Elena Kagan · Neil Gorsuch
Brett Kavanaugh · Amy Coney Barrett

The case is expected to revisit the Supreme Court's prior decision in Employment Division v. Smith, which had previously ruled that neutral laws of general applicability could not be challenged for violating religious exemptions.


The Roman Catholic Archdiocese of Philadelphia runs the Catholic Social Services (CSS) which has operated a foster care agency in Philadelphia for over 100 years. The foster care agency had been registered with the city up through 2018.

The Philadelphia Inquirer ran an article on March 13, 2018, which described the experience of a same-sex couple that went to an information session at Bethany Christian Service, which operated its own foster care service separate from CSS. At the session, the couple were told they would be wasting time because there was a policy for refusing to serve same-sex couples. In following up, the reporter discovered that CSS held a similar policy, and had spoken to the city's Department of Human Services, which oversaw regulating foster care services, to notify them of these issues.[1] The Commissioner of Human Services for the city, Cynthia Figueroa, followed up on the report with both CSS and Bethany Christian Services to confirm its veracity towards discrimination against same-sex couples. Figueroa also reviewed the standard with other registered foster care agencies for the city, many also who were also run by religious organizations, but found none of the others had similar restrictions against same-sex couples. Within a few days of the article's publication, the city suspended CSS's contract; the Bethany Christian Service had been able to work a deal to accept foster care from same-sex couples to maintain theirs.[2]

CSS and several foster couples under CSS brought litigation against the city in the United States District Court for the Eastern District of Pennsylvania under the Free Exercise Clause and Establishment Clause of First Amendment to the United States Constitution, the Pennsylvania State Religious Freedom Restoration Acts, Free Speech Clause of the First Amendment and the Religious Freedom Restoration Act of 1993, Pub. L. No. 103-141, 107 Stat. 1488 (November 16, 1993), codified at 42 U.S.C. § 2000bb through 42 U.S.C. § 2000bb-4 (also known as RFRA). CSS also had argued from the recent Supreme Court decision of Masterpiece Cakeshop v. Colorado Civil Rights Commission that they had been subject to hostility from the city based on anti-religious prejudice. The city countered that the precedent set by Employment Division v. Smith, alongside that other agencies in the city with similar religious backing accepted same-sex foster couples, supported the city's decision to terminate CSS's contract.[3]

The District Court refused to grant a preliminary injunction against the city's contract termination, leading CSS to appeal to the Third Circuit. The Third Circuit unanimously ruled against CSS, upholding the city's claim against Employment Division v. Smith.[3]

Supreme CourtEdit

CSS and the foster parents petitioned to the Supreme Court to hear the case, which was certified in February 2020.[3] Oral arguments occurred over telephone on November 4, 2020; Neal Katyal offered oral argument for the city.[4]

Oral argumentsEdit

Background of oral argumentsEdit

On November 4, the Court heard oral arguments in Fulton, in which Catholic Social Services (CSS) is suing the city of Philadelphia over CSS's having been offered a new contract enforcing the city's Fair Practices Ordinance that bars discrimination in accommodations. CSS says that for religious reasons it can not vet potential foster parents who are gay couples. CSS's suit asks the Court to overrule its 1990 decision Employment Division v. Smith that allows the government to enforce neutral and generally applicable laws without having to make exceptions for individual religions. CSS also contends that even under Smith the Court should find that the faith-based charity had been unfairly targeted by the city, given that the city allows race- and disability-based exceptions within foster-care placements,[5][6] and Smith held that "where the State has in place a system of individual exemptions, it may not refuse to extend that system to cases of 'religious hardship' without compelling reason."[7] CSS further claims that the law is shown to not be "neutral" as required under Smith, since the city referred to CSS's motives as "discrimination that occurs under the guise of religious freedom".[6][8] This argument is similar to the one made in Masterpiece Cakeshop, where the Court held that the government had not enforced the law in a manner that was neutral toward religion.[9] The city of Philadelphia argues that the law is neutral and generally applicable, as required by Smith, and that the Court's ruling in CSS's favor would impinge on the civil rights of not only LGBT individuals but potentially those of such groups as religious minorities.[10][11]

Oral argumentsEdit

Some members of the Court's conservative members like Justice Amy Coney Barrett didn't reveal their positions, while others did.[12][5] Two conservative members made clear that in their eyes the city of Philadelphia is not respectful of the religious beliefs held by Catholic Social Services (CSS). It appeared to Justice Brett Kavanaugh that Philadelphia was “looking for a fight” and “created a clash.”[5] Justice Samuel Alito noted that the case wasn't about same-sex couples in Philadelphia having the opportunity to be foster parents, but it's “the fact the city can’t stand the message that Catholic Social Services and the Archdiocese are sending by continuing to adhere to the old-fashioned view about marriage.”[5] Justice Stephen Breyer from the liberal wing of the Court asked Lori Windham, who argued on behalf of CSS: "What’s the problem? I still don’t quite see it."[5] Windham answered that even if the religious-backed foster care agency were to “tag a disclaimer” on its forms related to same-sex couples, CSS would still require the group to “evaluate, assess, and approve” of relationships that go against its religious beliefs.[5]

Justice Breyer and the other two liberal justices Elena Kagan and Sonia Sotomayor seemed to be intrigued by arguments from Philadelphia's attorney Neal Katyal, who stated that the stakes of the case go beyond the current case and includes virtually all government services.[5] Katyal said an religious exemption to Philadelphia’s nondiscrimination law by the Supreme Court would “radiate far beyond foster care.” According to him this would allow private contractors to refuse to provide services to religious groups from “Buddhist to Baptist” if those contractors cite their own religious convictions.[5] The central question during oral argument was whether CSS is running a government program or is it the recipient of a license to provide a service. This distinction is crucial, for "it could determine the outcome and allow the court to avoid confronting the vexing intersection of religious liberties and marriage equality."[10][5] CSS request to the Supreme Court to overrule its precedent Employment Division v. Smith case, in which it was decided that neutral laws of general applicability don't violate the First Amendment’s Free Exercise Clause, didn't play a central part during oral argument, which lasted approximately one hour and 45 minutes.[10][5][12] According to the New York Times, questions posed by newly appointed Associate Justice Amy Coney Barrett during the case's oral arguments were "evenhanded and did not reveal her position."[12]


  1. ^ Terruso, Julia (March 13, 2018). "Two Foster Agencies in Philly Won't Place Kids with LGBTQ People". Philly.com. Retrieved August 15, 2020.
  2. ^ Fulton v. City of Philadelphia, 320 F. Supp. 3d 661, 671 (E.D. Pa. 2018), aff'd, 922 F.3d 140 (3d Cir. 2019), cert. granted, 140 S. Ct. 1104, 206 L. Ed. 2d 177 (2020).
  3. ^ a b c Liptak, Adam (February 24, 2020). "Supreme Court to Hear Case on Gay Rights and Foster Care". The New York Times. Retrieved November 1, 2020.
  4. ^ Liptak, Adam (November 4, 2020). "Supreme Court Weighs Legacy of Same-Sex Marriage Case". The New York Times. ISSN 0362-4331. Retrieved November 4, 2020.
  5. ^ a b c d e f g h i j Higgins, Tucker (November 4, 2020). "Supreme Court leans in favor of Catholic adoption agency that won't work with LGBT couples". CNBC. Archived from the original on November 16, 2020.
  6. ^ a b Howe, Amy (October 28, 2020). "Case preview: Court will tackle dispute involving religious foster-care agency, LGBTQ rights". SCOTUSblog. Retrieved November 7, 2020.
  7. ^ "Employment Div. v. Smith". United States Supreme Court. 1990. p. 884. Retrieved November 7, 2020.
  8. ^ "Fulton v. Philadelphia, Reply Brief for Petitioners" (PDF). United States Supreme Court. September 24, 2020. Retrieved November 7, 2020.
  9. ^ "Fulton v. Philadelphia, Brief for the United States as Amicus Curiae Supporting Petitioners" (PDF). U.S. Supreme Court. June 3, 2020. Retrieved November 7, 2020.
  10. ^ a b c Tim Holbrook (November 6, 2020). "Opinion: LGBTQ rights may be safe at the Supreme Court -- for now". CNN. Archived from the original on November 6, 2020.
  11. ^ Michelle Boorstein (November 3, 2020). "Religion: Religious conservatives hopeful new Supreme Court majority will redefine religious liberty precedents". The Washington Post. Archived from the original on November 4, 2020. Retrieved November 10, 2020.
  12. ^ a b c Liptak, Adam (November 4, 2020). "Supreme Court Weighs Legacy of Same-Sex Marriage Case". The New York Times. Archived from the original on November 8, 2020.

Further readingEdit

  • Esbeck, Carl H. (2020). "The Free Exercise Clause, Its Original Public Meaning, and the Reconsideration of Employment Division of Oregon v. Smith". University of Missouri School of Law Legal Studies Research Paper No. 2020-21. SSRN 3657246.