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Fulton vs. City of Philadelphia

In the Fall of 2020, the Supreme Court is scheduled to hear oral arguments in a case involving faith-based adoption agencies and same-sex couples.

This Fall, the Supreme Court will review the case of Fulton v. City of Philadelphia. The case centers on a taxpayer-funded religious foster care agency that refused to license same-sex couples to be foster parents based on the agencies’ religious beliefs in violation of the provisions of its contract with the City of Philadelphia.


In May 2018, Catholic Social Services (“CSS”), a faith-based foster care agency filed a lawsuit against the City of Philadelphia with whom it had a contract to provide public child welfare services.

Despite the nondiscrimination provision in the City’s contract with CSS (and all other contractors), CSS refused to license same-sex couples to be foster parents based on religious objections.

When the City told CSS that it had to comply with the nondiscrimination requirement or its contract would not be renewed, CSS sued the City, claiming that requiring CSS to abide by the generally applicable nondiscrimination requirement for contractors violated the free exercise of religion, even though CSS chooses to be a contractor and accept taxpayer funds to provide the public service of child welfare. The federal trial court and federal appeals court rejected CSS’s argument and ruled for the City, finding that CSS’s religious Free Exercise rights were not violated. CSS appealed to the United States Supreme Court, and in February 2020, the Court agreed to take the case.

The Supreme Court has to decide three central questions:

1) what kind of showing CSS must make to succeed on this kind of religious discrimination claim (regarding the agency being a religious foster care agency in a contractual capacity);

2) whether the Supreme Court should reconsider its 1990 decision in Employment Division v. Smith, holding that the government can enforce laws that burden religious beliefs or practices as long as the laws are “neutral” or “generally applicable”; and

3) whether the government violates the First Amendment when it makes participation by a religious social-services agency in the foster-care system contingent on actions and statements by the agency that conflicts with the agency’s religious beliefs.

In Fulton the city stopped placements with the agency, Catholic Social Services, after an article in The Philadelphia Inquirer described its policy against placing children with same-sex couples. The agency and several foster parents sued the city, alleging the decision violated their First Amendment rights to religious freedom and free speech.

Potential Implications:

Many states and localities across the country that contract with private agencies to provide services in the public child welfare system have nondiscrimination requirements similar to the City of Philadelphia’s. Agencies voluntarily enter into these contracts and are paid taxpayer dollars to carry out the state’s duty to care for and provide homes for children whom the state has removed from their parents or guardians.

Nationwide there is already a flooded foster care system. In Philadelphia and nationwide there are currently thousands of children in foster care and there is a severe shortage of foster families willing and able to open their hearts and homes to these children. Allowing foster care agencies to exclude or “opt out” of licensing qualified families based on religious requirements that have nothing to do with the ability to care for a child such as their sexual orientation or faith would make it even more difficult to place children in good homes. Allowing agencies to turn away qualified, loving families because they do not meet the agency’s religious test only exacerbates the problem.

Moreover, a broader decision holding that religious entities are constitutionally entitled to contract with the government but then refuse to comply with the parts of the contract to which they object would have a profound impact on all government contracting.

Additionally, in the past, some states had laws banning LGBTQ people from becoming foster or adoptive parents. The last of these was struck down in 2016. As these outright bans were struck down, those opposed to LGBTQ equality have increasingly sought a far-reaching constitutional license to discriminate in the name of religion. This case has dramatic implications in regards to the LGBTQ communities as well, and their rights to equality pursuant to federal and state law.

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Stott, Hollowell, Windham & Stancil, PLLC

Stott, Hollowell, Windham & Stancil, PLLC offers legal knowledge and experience spanning over 40 years to provide quality legal services to the greater Gaston and Charlotte regions.

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