Fulton v. City of Philadelphia, Pennsylvania is a case argued before the Supreme Court of the United States on November 4, 2020, during the court’s October 2020-2021 term. The case came on a writ of certiorari to the United States Court of Appeals for the 3rd Circuit.
In 2018, the city of Philadelphia’s Department of Human Services began an investigation into two of its foster care provider agents for potential violations of the city’s anti-discrimination laws. The investigation was based on an allegation that the agencies refused to work with same-sex couples seeking to become foster parents. One of the agencies was a religious nonprofit organization, Catholic Social Services (“CSS”). CSS confirmed that it would not certify same-sex couples as foster parents. The city stopped referring foster children to the agency. CSS filed suit against the city in district court, citing violations of its rights under the First Amendment and under Pennsylvania’s Religious Freedom Protection Act. The district court denied the request. CSS appealed to the 3rd Circuit, seeking emergency injunctive relief pending appeal. The circuit court denied the request. Then, CSS filed an emergency application to the Supreme Court for an injunction pending appeal or an immediate grant of certiorari. The Court denied the request. On appeal, the 3rd Circuit affirmed the district court’s ruling.
(1) Whether free exercise plaintiffs can only succeed by proving a particular type of discrimination claim—namely that the government would allow the same conduct by someone who held different religious views—as two circuits have held, or whether courts must consider other evidence that a law is not neutral and generally applicable, as six circuits have held? (2) Whether Employment Division v. Smith should be revisited? (3) Whether a government violates the First Amendment by conditioning a religious agency’s ability to participate in the foster care system on taking actions and making statements that directly contradict the agency’s religious beliefs?”