Fulton v. City of Phila.

• Decision Date: 17 June 2021
• Docket Number: No. 19-123,19-123
• Parties: Sharonell FULTON, et al., Petitioners v. CITY OF PHILADELPHIA, PENNSYLVANIA, et al.
• Court: U.S. Supreme Court

141 S.Ct. 1868

210 L.Ed.2d 137

Sharonell FULTON, et al., Petitioners

v.CITY OF PHILADELPHIA, PENNSYLVANIA, et al.

No. 19-123

Supreme Court of the United States.

Argued November 4, 2020

Decided June 17, 2021

Lori H. Windham, Washington, DC, for the Petitioners.

Hashim M. Mooppan, Counselor to the Solicitor General, for the United States as amicus curiae, by special leave of the Court, supporting the petitioners.

Neal K. Katyal, Washington, DC, for the City of Philadelphia, et al. respondents.

Jeffrey L. Fisher, Stanford, CA, for the Support Center for Child Advocates and Family Pride respondents.

Nicholas M. Centrella, Conrad O'Brien PC, Philadelphia, PA, Mark L. Rienzi, Counsel of Record, Lori H. Windham, Eric C. Rassbach, William J. Haun, Nicholas R. Reaves, Jacob M. Coate, The Becket Fund for Religious Liberty, Washington, DC, for petitioners.

Neal Kumar Katyal, Mitchell P. Reich, Kirti Datla, Danielle Desaulniers Stempel, Hogan Lovells US LLP, Washington, DC, Thomas P. Schmidt, Hogan Lovells US LLP, New York, NY, Marcel C. Pratt, City Solicitor, Diana P. Cortes, Jane Lovitch Istvan, Eleanor N. Ewing, Benjamin H. Field, Cynthia Schneider, Elise Bruhl, Michael Pfautz, City of Philadelphia, Law Department, Joshua Matz, Kaplan Hecker & Fink, New York, NY, Deepak Gupta, Jonathan E. Taylor, Lark Turner, Alexandria Twinem, Gupta Wessler PLLC, Washington, DC, for respondents City of Philadelphia, Department of Human Services for the City of Philadelphia, and Philadelphia Commission on Human Relations.

Jeffrey L. Fisher, Brian H. Fletcher, Pamela S. Karlan, Stanford Law School, Supreme Court, Litigation Clinic, Stanford, CA, Yaira Dubin, O'Melveny & Myers LLP, New York, NY, Fred T. Magaziner, Catherine V. Wigglesworth, Will W. Sachse, Dechert LLP, Philadelphia, PA, Leslie Cooper, Counsel of Record, Joshua A. Block, James D. Esseks, Louise Melling, Jennesa Calvo-Friedman, American Civil Liberties, Union Foundation, New York, NY, David D. Cole, Daniel Mach, American Civil Liberties, Union Foundation, Washington, DC, Mary Catherine Roper, American Civil Liberties, Union of Pennsylvania, Philadelphia, PA, Counsel for Support Center for Child Advocates and Philadelphia Family Pride.

Chief Justice ROBERTS delivered the opinion of the Court.

Catholic Social Services is a foster care agency in Philadelphia. The City stopped referring children to CSS upon discovering that the agency would not certify same-sex couples to be foster parents due to its religious beliefs about marriage. The City will renew its foster care contract with CSS only if the agency agrees to certify same-sex couples. The question presented is whether the actions of Philadelphia violate the First Amendment.

I

The Catholic Church has served the needy children of Philadelphia for over two centuries. In 1798, a priest in the City organized an association to care for orphans whose parents had died in a yellow fever epidemic. H. Folks, The Care of Destitute, Neglected, and Delinquent Children 10 (1902). During the 19th century, nuns ran asylums for orphaned and destitute youth. T. Hacsi, Second Home: Orphan Asylums and Poor Families in America 24 (1997). When criticism of asylums mounted in the Progressive Era, see id. , at 37–40, the Church established the Catholic Children's Bureau to place children in foster homes. Petitioner CSS continues that mission today.

The Philadelphia foster care system depends on cooperation between the City and private foster agencies like CSS. When children cannot remain in their homes, the City's Department of Human Services assumes custody of them. The Department enters standard annual contracts with private foster agencies to place some of those children with foster families.

The placement process begins with review of prospective foster families. Pennsylvania law gives the authority to certify foster families to state-licensed foster agencies like CSS. 55 Pa. Code § 3700.61 (2020). Before certifying a family, an agency must conduct a home study during which it considers statutory criteria including the family's "ability to provide care, nurturing and supervision to children," "[e]xisting family relationships," and ability "to work in partnership" with a foster agency. § 3700.64. The agency must decide whether to "approve, disapprove or provisionally approve the foster family." § 3700.69.

When the Department seeks to place a child with a foster family, it sends its contracted agencies a request, known as a referral. The agencies report whether any of their certified families are available, and the Department places the child with what it regards as the most suitable family. The agency continues to support the family throughout the placement.

The religious views of CSS inform its work in this system. CSS believes that "marriage is a sacred bond between a man and a woman." App. 171. Because the agency understands the certification of prospective foster families to be an endorsement of their relationships, it will not certify unmarried couples—regardless of their sexual orientation—or same-sex married couples. CSS does not object to certifying gay or lesbian individuals as single foster parents or to placing gay and lesbian children. No same-sex couple has ever sought certification from CSS. If one did, CSS would direct the couple to one of the more than 20 other agencies in the City, all of which currently certify same-sex couples. For over 50 years, CSS successfully contracted with the City to provide foster care services while holding to these beliefs.

But things changed in 2018. After receiving a complaint about a different agency, a newspaper ran a story in which a spokesman for the Archdiocese of Philadelphia stated that CSS would not be able to consider prospective foster parents in same-sex marriages. The City Council called for an investigation, saying that the City had "laws in place to protect its people from discrimination that occurs under the guise of religious freedom." App. to Pet. for Cert. 147a. The Philadelphia Commission on Human Relations launched an inquiry. And the Commissioner of the Department of Human Services held a meeting with the leadership of CSS. She remarked that "things have changed since 100 years ago," and "it would be great if we followed the teachings of Pope Francis, the voice of the Catholic Church." App. 366. Immediately after the meeting, the Department informed CSS that it would no longer refer children to the agency. The City later explained that the refusal of CSS to certify same-sex couples violated a non-discrimination provision in its contract with the City as well as the non-discrimination requirements of the citywide Fair Practices Ordinance. The City stated that it would not enter a full foster care contract with CSS in the future unless the agency agreed to certify same-sex couples.

CSS and three foster parents affiliated with the agency filed suit against the City, the Department, and the Commission. The Support Center for Child Advocates and Philadelphia Family Pride intervened as defendants. As relevant here, CSS alleged that the referral freeze violated the Free Exercise and Free Speech Clauses of the First Amendment. CSS sought a temporary restraining order and preliminary injunction directing the Department to continue referring children to CSS without requiring the agency to certify same-sex couples.

The District Court denied preliminary relief. It concluded that the contractual non-discrimination requirement and the Fair Practices Ordinance were neutral and generally applicable under Employment Division, Department of Human Resources of Oregon v. Smith , 494 U.S. 872, 110 S.Ct. 1595, 108 L.Ed.2d 876 (1990), and that the free exercise claim was therefore unlikely to succeed. 320 F.Supp.3d 661, 680–690 (E.D. Pa. 2018). The court also determined that the free speech claims were unlikely to succeed because CSS performed certifications as part of a government program. Id. , at 695–700.

The Court of Appeals for the Third Circuit affirmed. Because the contract between the parties had expired, the court focused on whether the City could insist on the inclusion of new language forbidding discrimination on the basis of sexual orientation as a condition of contract renewal. 922 F.3d 140, 153 (2019). The court concluded that the proposed contractual terms were a neutral and generally applicable policy under Smith . 922 F.3d at 152–159. The court rejected the agency's free speech claims on the same grounds as the District Court. Id. , at 160–162.

CSS and the foster parents sought review. They challenged the Third Circuit's determination that the City's actions were permissible under Smith and also asked this Court to reconsider that precedent.

We granted certiorari. 589 U. S. ––––, 140 S.Ct. 1104, 206 L.Ed.2d 177 (2020).

II

A

The Free Exercise Clause of the First Amendment, applicable to the States under the Fourteenth Amendment, provides that "Congress shall make no law ... prohibiting the free exercise" of religion. As an initial matter, it is plain that the City's actions have burdened CSS's religious exercise by putting it to the choice of curtailing its mission or approving relationships inconsistent with its beliefs. The City disagrees. In its view, certification reflects only that foster parents satisfy the statutory criteria, not that the agency endorses their relationships. But CSS believes that certification is tantamount to endorsement. And "religious beliefs need not be acceptable, logical, consistent, or comprehensible to others in order to merit First Amendment protection." Thomas v. Review Bd. of Ind. Employment Security Div. , 450 U.S. 707, 714, 101 S.Ct. 1425, 67 L.Ed.2d 624 (1981). Our task is to decide whether the burden the City has placed on the religious exercise of CSS is constitutionally permissible.

Smith held that laws incidentally burdening religion are ordinarily not subject to strict scrutiny under the Free Exercise Clause so long as they are neutral and generally...