Fulton v. City of Phila. - 141 S. Ct. 1868 (2021)

Rule:

Government fails to act neutrally when it proceeds in a manner intolerant of religious beliefs or restricts practices because of their religious nature.

Facts:

The City of Philadelphia informed petitioner Catholic Social Services (“CSS”) that unless it agreed to certify same-sex couples the City would no longer refer children to the agency or enter a full foster care contract with it in the future. The City explained that the refusal of CSS to certify same-sex couples violated both a non-discrimination provision in the agency's contract with the City as well as the non-discrimination requirements of the citywide Fair Practices Ordinance. CSS and three affiliated foster parents filed suit seeking to enjoin the City’s referral freeze on the grounds that the City’s actions violated the Free Exercise and Free Speech Clauses of the First Amendment. The District Court denied preliminary relief. It reasoned that the contractual non-discrimination requirement and the Fair Practices Ordinance were both neutral and generally applicable under Employment Div., Dept. of Human Resources of Ore. v. Smith, 494 U. S. 872, 110 S. Ct. 1595, 108 L. Ed. 2d 876, and that CSS's free exercise claim was therefore unlikely to succeed. The Court of Appeals for the Third Circuit affirmed. CSS and the foster parents sought review. 

Issue:

Did the City’s actions violate the Free Exercise and Free Speech Clauses of the First Amendment? 

Answer:

Yes.

Conclusion:

The Court held that the refusal of Philadelphia to contract with CSS for the provision of foster care services unless CSS would agree to certify same-sex couples as foster parents violated the Free Exercise Clause of the First Amendment. According to the Court, the City's actions burdened CSS's religious exercise by forcing it either to curtail its mission or to certify same-sex couples as foster parents in violation of its religious beliefs. Smith held that laws incidentally burdening religion were ordinarily not subject to strict scrutiny under the Free Exercise Clause so long as they were both neutral and generally applicable. However, the present case fell outside Smith because the City has burdened CSS's religious exercise through policies that did not satisfy the threshold requirement of being neutral and generally applicable. Moreover, the Court held that the City's interests in maximizing the number of foster families, protecting itself from liability, and ensuring equal treatment of prospective foster parents and foster children did not justify the City's failure to grant the agency an exemption from the requirement to certify same-sex couples.