Fulton v. City of Philadelphia

The City of Philadelphia contracts with various foster care agencies to provide placement services for prospective foster families. Philadelphia’s Fair Practices Ordinance, and the contract the city enters into with foster care agencies, forbids discrimination against LGBTQ+ persons in public accommodations. Public accommodations were defined as, “Any provider, whether licensed or not, which solicits or accepts patronage or trade of the public or whose . . . services, facilities . . . are extended, offered or otherwise made available to the public; including all . . . services provided by any public agency or authority; any agency, authority or other instrumentality of . . . the City, its departments, boards and commissions.” The contract also contained a clause that provided city officials the discretion to waive the non-discrimination requirement for sexual orientation.

Catholic Social Services (CSS) is a religious agency which believes that marriage should be between one man and one woman. It maintained a policy of not placing children with unmarried or same-sex couples. In response, Philadelphia informed CSS that it would no longer contract with it should this policy continue. When CSS refused to change its policies, its contract with the city was terminated. CSS sued, alleging that Philadelphia’s action constituted religious discrimination under the First Amendment, the Religious Freedom Restoration Act, and Pennsylvania’s laws on religious freedom.

The United States District Court for the Eastern District of Pennsylvania denied CSS’s motion for a preliminary injunction, ruling that it was a public accommodation subject to the city’s non-discrimination ordinance. The district court also found that the contract and the Fair Practices Ordinance were neutral, generally applicable laws, meaning they were subject to a presumption of validity under rational basis review. The district court found there was no evidence that the contract requirements or ordinance were enacted to discriminate against religion or applied to proscribe religious conduct. The plaintiffs then appealed to the Third Circuit Court of Appeals, which upheld the district court’s ruling. CSS then petitioned for a writ of certiorari from the United States Supreme Court, which granted the petition.

The League of Women Voters of the United States and 26 other civil rights and public interest organizations joined an amicus brief led by the Lawyers’ Committee for Civil Rights Under Law and the Leadership Conference on Civil and Human Rights in support of Philadelphia. The brief urged the Supreme Court to uphold the city’s non-discrimination regulations, arguing governments had a compelling interest in preventing discrimination, detailing the prejudice suffered by the LGBTQ+ community, and recounting past abuse of the First Amendment to perpetuate racial discrimination. The brief also presented evidence that children of color would be harmed if foster care agencies were permitted to reject LGBTQ+ couples on the grounds of religion. Finally, the brief argued that granting the petitioners’ request would diminish government power to fight discrimination using government contracts with service providers.

The Court ruled in favor of CSS, stating that Philadelphia’s Fair Practices Ordinance and non-discrimination provision in its contract with CSS was not sufficiently tailored under strict scrutiny to pass constitutional muster. The Court also ruled Philadelphia’s Fair Practices Ordinance did not apply to CSS, because foster care services were not a public accommodation open to the public under the Ordinance. Therefore, the contractual non-discrimination requirement was a burden on CSS’s religious freedom and violated the Free Exercise Clause under strict scrutiny.