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Fulton v. City of Philadelphia

Catholic Foster Care Agency Seeks to Overturn Important Religious Freedom Precedent

When does transparency hinder the ability of policy experts to deliberate?

ArgumentNovember 4, 2020
DecisionJune 17, 2021
Opinion Belowimage.jpg
Third Circuit Court of Appeals
Petitioner BriefSharon Fulton, et al.
Respondent BriefCity of Philadelphia, et al.

Case Decision

On June 17, 2021, the Supreme Court ruled for Fulton and Catholic Social Services. Philadelphia cannot exclude the Catholic organization from the city’s foster care program because the organization refuses to certify same-sex couples as foster parents.

Scroll down for our Decision Analysis.

Argument Analysis

October 20, 2020

The City of Philadelphia is responsible for providing homes for children requiring foster care. These are children who have been removed from their homes because their parents are facing charges of abuse or neglect.

A person wanting to become a foster parent must be approved by the City. Philadelphia contracts out the task of approving foster families to private organizations. The private organizations (“foster family care agencies”) interview family members, visit homes, and advise the City on whether a foster family should be licensed.

Catholic Social Services, A Foster Family Care Agency

Catholic Social Services (CSS) is a nonprofit organization which has contracted with Philadelphia as a foster family care agency for decades. The City describes that:

[CSS] has performed its contractual duties with distinction, helping DHS identify and approve hundreds of families to care for the City’s foster children. To this day, DHS continues to contract with CSS to provide a number of services to children in foster care, including managing group homes and directly providing social services to foster children.

Accordingly, CSS has performed very well as a foster family care agency in Philadelphia. However, Philadelphia is not re-signing for foster services with the agency because CSS will not agree to the City’s new contract terms.

The Nondiscrimination Provision

In March 2018, a newspaper report highlighted that CSS would not work with same-sex couples. Despite that CSS had otherwise performed its responsibilities well, Philadelphia took issue with the organization’s stance against gay couples, deciding the policy is unacceptable discrimination.

CSS follows the Catholic Church teachings on marriage. As CSS explains, “That means, if ever asked, CSS could not provide a written endorsement of a same-sex relationship for a couple seeking to foster.”

A same-sex couple wishing to become a foster family must get licensed with a different agency.

After the article came out, Philadelphia redrafted its contracts with foster family care agencies. The new contracts include an anti-discrimination provision requiring that a foster family care agency cannot discriminate on the basis of sexual orientation. If CSS can’t work with same-sex couples, it can’t act as a foster family care agency.

The Lawsuit: First Amendment Claims

CSS sued the City of Philadelphia with several First Amendment claims. The First Amendment bars the government from restricting a person’s speech or expression. It also prohibits the government from disfavoring a particular religion.

In the lawsuit, CSS claimed Philadelphia’s new anti-discrimination policy targets the Catholic organization because of its religious views. Further, the new anti-discrimination policy violates its freedom of speech and its freedom of expression because the policy forces the organization to approve of same-sex relationships, meaning it forces expression and speech contrary to the organization’s beliefs.

The City says the First Amendment was made for a case like this, where the government intends to restrict religious exercise because it does not agree with the religion’s views.

Procedural History

CSS and the foster parent petitioners attempted to get preliminary relief in the district court, meaning they wanted the trial court to rule that they were likely to win the case. Preliminary relief would also put the City’s actions (i.e. new contract terms) on hold. However they lost. They appealed, and the Third Circuit Court of Appeals sided with the City again. The Third Circuit Court of Appeals ruled that Philadelphia was not likely to win their claims and thus could not get preliminary relief.

According to the Third Circuit, the City’s rule is valid because it applied generally and was neutral towards religion. Thus, in following Supreme Court precedent, Employment Division v. Smith (1990), the City had not violated the Free Exercise clause. Because the City had not set out to target the Petitioners but rather to promote a religiously-neutral policy against discrimination, it had not violated the Establishment Clause.

The Third Circuit also denied CSS’s requests for relief for its other First Amendment claims. In sum, according to the Third Circuit, the City had the right to insist that CSS not discriminate against same-sex couples as a condition of working with it to provide foster services.

CSS and the foster parents appealed the Third Circuit ruling to the Supreme Court.

Issues on Appeal

Petitioners argue to the Supreme Court that the Third Circuit wrongly analyzed the Free Exercise claim. The Third Circuit evaluated whether the government would have allowed the same conduct by someone with a different religious view. Petitioners argue the Third Circuit should have used a broader set of evidence to determine whether a law is neutral and generally-applicable.

Further, Petitioners argue that the relevant Free Exercise precedent, Employment Division v. Smith (1990), should be overturned. Smith ruled that the government is generally free to restrict religious liberty as long as the law is religiously neutral and generally applicable. Petitioners argue that rule is unworkable and fails to provide adequate Free Exercise protection.

Petitioners’ Arguments

Petitioners argue that Smith doesn’t apply to this case. And further, Smith should be overturned. Either way, the Third Circuit failed to protect the guarantees of the Free Exercise clause in applying Smith.

The Smith rule practically insulates a government action from a free exercise challenge if the government action was religiously-neutral and generally-applicable. But Petitioners argue that Smith doesn’t apply in this case. They argue that Philadelphia didn’t actually have an anti-discrimination law on the books that applied. Rather, according to CSS, Philadelphia determined its policy after deciding it disrespected CSS’s beliefs and then created a law—after the fact—to target the organization.

Philadelphia had no neutral law. Philadelphia decided on an outcome and then tried to find a law to fit. When it couldn’t, it reverse-engineered policies to justify its actions. This is the inverse of the neutral law in Smith. Philadelphia then compounded that error through express hostility toward CSS’s religious exercise.

Brief of Petitioners at 17.

Plus, CSS argues, Philadelphia allows all kinds of exemptions to its foster agency rules. Thus, the “law” isn’t generally applicable:

Nor did Philadelphia have a generally applicable law. A law cannot be generally applicable when it uses individualized exemptions, and Philadelphia has granted the Commissioner and the City’s lawyers carte blanche to give exemptions. But no such exemption will be granted for CSS’s religious exercise.

Brief of Petitioners at 17.

Petitioners also argue that the Supreme Court should overturn Smith. They argue that Smith is not a workable standard and that it “is unsupported by the text, history, and tradition of the Free Exercise Clause—all of which guarantee broad protection for religious beliefs and practices.” Without Smith, individuals would be able to argue for strict scrutiny of government action that they claim violates their religious freedom. Petitioners claim that applying strict scrutiny in such a case would suit the commands of the First Amendment, whereas Smith does not.

Under strict scrutiny, Petitioner argue, this case would certainly fail because the government is compelling private speech:

Philadelphia requires private agencies, as a condition of providing foster care, to author a written document evaluating and endorsing same-sex and unmarried cohabitating relationships. There is no question that the endorsement is speech. It comes in the form of a home study written by CSS, which requires evaluations—both objective and subjective—of everything from the quality of the applicant’s intimate relationships to their suitability to raise children.

Brief of Petitioners, internal citations omitted.

Philadelphia cannot compel CSS to act against its religious beliefs Petitioners argue, and the Court must fix the precedent which resulted in the Third Circuit ruling.

Respondents’ Arguments

Respondents argue that Philadelphia is not requiring CSS to do anything. CSS voluntarily acts as a foster care agency in agreeing to perform a responsibility that belongs to the government. CSS doesn’t have to participate, so the City is not requiring it to make any speech it doesn’t agree with. But it the agency does decide to work with the government, it must follow government rules—which means no discriminating against same-sex couples.

The government has “significantly greater leeway” when directing its employees and contractors than when regulating private individuals in its capacity as “sovereign.” That “extra power” stems both from the reality that government “could not function” if its agents had a constitutional right to perform their jobs as they see fit, and from the attenuated burden the government imposes on individual rights when it instructs its employees and contractors how to perform their official duties.

Brief of Respondents, internal citations omitted.

Respondents argue under Smith that the anti-discrimination provision is religiously-neutral and generally-applicable. They argue against overturning Smith under stare decisis. They also argue that this case is not a good one to use for reconsidering the precedent because it comes within the government contracting context. In government contracting, Philadelphia argues, the government must be able to control its operations more than when it is controlling private action. If the Court wants to revisit Smith, it should find a case in which the government is controlling private action. Further, Philadelphia claims that its anti-discrimination actions would satisfy strict scrutiny anyway, which also means the case is not a good one to use for reconsidering Smith.

The Supreme Court will hear arguments on November 4, 2020.

Decision Analysis

On June 17, 2021 the Supreme Court ruled that the City of Philadelphia cannot ban the Catholic social services organization from the City’s foster care program for refusing to certify same-sex couples as foster parents.

Case Background

The City of Philadelphia, in its contracts with foster care agencies, requires foster care agencies to work with same-sex couples. Catholic Social Services is a Catholic organization which has served the City’s foster program for decades and wants to continue doing so, but certifying same-sex couples as parents conflicts with CSS’s sincerely held religious beliefs. 

Because CSS refuses to work with same-sex couples, Philadelphia banned it from the foster care program. CSS sued the City, arguing that banning CSS from serving children based on its religious beliefs violates the organization’s First Amendment right to free exercise of religion.

Supreme Court Analysis

The Supreme Court first evaluated the case based on the rule in existing precedent on the Free Exercise clause, Employment Division v. Smith (1990). Smith held that a law or government policy restricting religious exercise in a neutral or generally-applicable way does not need to satisfy “strict scrutiny.” In this case, though, the Court determined that the City’s policy was not actually generally applicable.

The Court noted that Philadelphia’s requirement that foster care agencies serve same-sex couples is not neutrally enforced on foster care agencies. The City enforces the requirement according to the “sole discretion” of the Commissioner of the Department of Human Services. As such, the policy is not “generally applicable.”

Any rule that restricts religious exercise and is not generally applicable must satisfy strict scrutiny, which requires that the government have a “compelling” government interest and the law is narrowly-tailored to serve that interest. In this case, the Court ruled that Philadelphia had no compelling interest in refusing the grant CSS an exception to the rule that it serve same-sex couples. According to the Court, all CSS was asking for was an accommodation to the rule so that it could continue to serve the children of Philadelphia in a manner consistent with its religious beliefs. Thus, the City’s action banning CSS from the program does not satisfy strict scrutiny, and the action violated CSS’s First Amendment right to free exercise.


The case included three concurring opinions, all addressing whether Smith should be overturned. First, Justice Barrett wrote stating that this case did not present the case for Smith to be overturned because the Philadelphia policy was not generally applicable. Justice Kavanaugh signed on to Barrett’s opinion in full, and Justice Breyer signed onto it in part.

Justice Alito and Justice Gorsuch each wrote an opinion stating that Smith must be reexamined. Alito wrote at length on the issue, and Gorsuch and Thomas signed on. Gorsuch added some comments on the issue in his own opinion, and Thomas and Alito signed on.

Fulton v. City of Philadelphia

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About the Author

Mariam Morshedi

Mariam Morshedi

Mariam Morshedi is the Founder and Executive Director of Subscript Law. Before starting Subscript Law, she practiced civil rights law for AARP Foundation, where she litigated housing, consumer and disability rights issues.

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