Civil and Human Rights

Fulton v. City of Philadelphia

In Fulton v. City of Philadelphia, the Supreme Court will consider whether the Free Exercise Clause requires Philadelphia to contract with a private agency to provide foster-parent services even though that agency refuses to comply with the city’s neutral and generally applicable rule that prohibits discrimination against prospective foster parents in same-sex relationships.

Case Summary

To fulfill its mandate to care for foster children in its custody, the City of Philadelphia contracts with a number of private agencies, including some religious agencies, to identify, screen, and certify prospective foster parents.  Philadelphia requires the agencies with which it contracts to comply with its nondiscrimination policy, which prohibits agencies from discriminating against prospective foster parents on the basis of certain protected characteristics, including sexual orientation, when performing duties on behalf of the city.

In 2018, the City determined that Catholic Social Services (CSS), which had a contract to perform foster-parent services, was not complying with this nondiscrimination requirement because CSS refused to serve prospective foster parents in same-sex relationships.  The City therefore refused to contract with CSS.  CSS, along with two of its previous foster-parent clients, filed suit, arguing that the City’s refusal to contract with CSS unless CSS complied with the City’s nondiscrimination policy violated CSS’s First Amendment rights.  The U.S. Court of Appeals for the Third Circuit held that the City of Philadelphia was under no constitutional obligation to contract with CSS while allowing it to discriminate against same-sex couples.  The Supreme Court agreed to hear the case, and CAC filed an amici curiae brief on behalf of First Amendment scholars in support of the City.

Our brief makes two points.  First, it argues that Founding-era history regarding the free exercise of religion does not support the petitioners’ claim that they are entitled to an exemption from a neutral and generally applicable civil law.  Several Founding-era state constitutions included provisions that protected the free exercise of religion but also made clear that individuals were not permitted to violate the peace and safety of other citizens in the exercise of their religion.  Further, founding-era congressional debates support the view that the Free Exercise Clause was not understood to have conferred a broad religious exemption from compliance with civil laws.

Second, the brief explains why the Court should not revisit its decision in Employment Division v. Smith, which held that where “prohibiting or burdening the free exercise of religion ‘is not the object [of a law] but merely the incidental effect of a generally applicable and otherwise valid provision, the First Amendment has not been offended.’”  As the brief explains, a ruling for petitioners would require this Court to overrule not only Smith, but also many precedents that pre-date Smith.  Pre-Smith precedent made clear that the government has broad authority to conduct its internal affairs without having to conform to every individual’s religious views.  Pre-Smith precedent also made clear that even if laws that impinged on a person’s religious beliefs were subject to strict scrutiny, the government has a compelling interest in eradicating discrimination, and it can achieve that end only by prohibiting discrimination across the board.  In short, application of pre-Smith precedent leads to the conclusion that petitioners have no right to participate in government contracts without complying with the government’s nondiscrimination policy.

Case Timeline

  • CAC files amici curiae brief on behalf of First Amendment scholars

    Sup. Ct. Amici Br.
  • November 4, 2020

    The Supreme Court hears oral argument

More from Civil and Human Rights

Civil and Human Rights
U.S. Supreme Court

Caniglia v. Strom

In Caniglia v. Strom, the Supreme Court is considering whether the “community caretaking” exception to the Fourth Amendment’s warrant requirement should extend to the home.
Civil and Human Rights
December 7, 2020

The Art of Suffrage: Cartoons Reflect America’s Struggle for Equal Voting Rights

Content Warning to Readers: Some quotations of image captions in this post contain offensive and...
By: Tekla Taylor
Civil and Human Rights
November 4, 2020

RELEASE: Challengers’ Argument In Fulton Could “Require Governments To Allow All Manner Of Discrimination”

WASHINGTON – Following oral argument this morning in Fulton v. City of Philadelphia, Constitutional Accountability...
Civil and Human Rights
October 1, 2020

The 19th Amendment and Our Unfinished Work

Host: Constitutional Accountability Center
As our nation mourns the loss of Justice Ginsburg—a stalwart champion for gender equality and...
Participants: Elizabeth B. Wydra, Praveen Fernandes, Catherine E. Lhamon, Jocelyn Frye
Civil and Human Rights
August 21, 2020

The Fate of Anti-Discrimination Laws Lies With the Supreme Court

During the October 2020 term, the Supreme Court is set to take up some extremely...
By: Becca Damante
Civil and Human Rights
August 21, 2020

OP-ED: This 19th Amendment Centennial, Ensure that Votes of Black Women Matter

InsideSources
As a woman and constitutional lawyer, I have long held special reverence for the 19th...
By: Elizabeth B. Wydra