What Fulton v. Philadelphia Is--and Isn't--About

Marty Lederman

Later this morning, the Supreme Court will hear argument in the most significant Religion Clause case of the Term, Fulton v. City of Philadelphia, No. 19-123.  The principal question in the case is whether the City of Philadelphia may insist that a city contractor involved in helping the City with its foster care program must comply with a term of the contract that forbids discriminating against prospective foster-care parents on the basis of their sexual orientation, where the contractor has a religious objection to dealing with same-sex couples.  

Many public descriptions of the case, and of the questions it presents, have been misleading or confused.  In this post, I’ll try to clarify what the case is, and is not, about.

Background

Most of the confusion about Fulton stems from misunderstandings of who performs which functions in the Philadelphia foster care system, and exactly what those functions are.  It's therefore important to describe the facts in some detail in order to understand what’s at issue, and what's at stake.

When a child in Pennsylvania is subjected to neglect, abuse or exploitation in his or her home that can’t otherwise be remedied, the government of the county in which the child lives—or, in Philadelphia, the City government—has a statutory duty to take custody of the child.  Because it would be impractical, however, for the Philadelphia Department of Human Services (DHS) itself to care for the many thousands of such children in the city--and because placement with a family is generally far better for a child than institutional care--that city agency ordinarily finds alternative custodial placement for the child, including, in many cases, in one form or another of foster care.  In many cases, the City DHS places children with extended family members (“kinship” care), but where that’s not possible the City DHS places the children—approximately 2000 at any one time—with non-relatives who have been certified as eligible foster parents.  J.A. 685.

The Fulton case is not about the decisions to place particular children with foster families:  as explained below, that remains a function controlled by the City DHS.  It is, instead, about the antecedent process of certifying families as eligible, under state law, to be foster parents.  Under Pennsylvania law, this family-certification function is assigned in the first instance to a different government actor: the Pennsylvania Department of Human Services.  And, importantly, the Pennsylvania DHS has delegated that responsibility to private organizations who contract with the relevant county agency dealing with foster care or, in Philadelphia, with the City DHS.  See Pa. Code 55-3700.61 (“The Department delegates its authority under Article IX of the Public Welfare Code (62 P.S. §§ 901-922) to inspect and approve foster families to an approved foster family care agency.”).  This delegation of the Commonwealth agency’s family-approval function is not simply a matter of Pennsylvania abdicating its responsibility to perform its own duty by turning it over to private parties to do what they wish.  To the contrary, those private parties perform the family-certification function on behalf of the Commonwealth DHS itself, according to standards the Pennsylvania DHS has promulgated—which is why, if a contracting agency denies family approval in a particular case, the prospective foster parents can appeal that decision to the Pennsylvania DHS’s Office of Hearings and Appeals.  

In other words, the City of Philadelphia contracts with private organizations—called “Foster Care Agencies” (FCAs)—to perform a function delegated to that private party by a state agency, on behalf of the state, regarding the certification of the eligibility of other private parties to care for children who’ve been in the custody of the City.  

In recent years in Philadelphia, there are two or three dozen such FCAs at any one time.  Prospective foster parents choose which FCA they’d like to work with, after which the FCA assesses the prospective parents (including through “home visits”) to determine whether they satisfy the regulatory criteria to be legally eligible to provide foster care for children, and ultimately makes a “decision to approve, disapprove or provisionally approve the foster family.”  55 Pa. Code § 3700.69(c).  

In making this assessment of foster-parent eligibility, an FCA must adhere to the criteria prescribed by state law.  For example, the prospective parents must be physically able to care for children and free from communicable disease; the residence must have at least one flush toilet, one wash basin and one bath or shower with hot and cold running water, a heating system, and a telephone; the parents cannot have committed certain crimes or child abuse; etc.  The FCA must also assess, more broadly, whether a prospective foster parent has the “ability to provide care, nurturing and supervision to children,” if he or she has “[a] demonstrated stable mental and emotional adjustment,” and if he or she has “[s]upportive community ties with family, friends and neighbors.”

For many decades preceding 2018, Catholic Social Services (CSS) was one of the agencies with which the City contracted to be an FHA to perform this state-delegated family-certification function.  Pursuant to such contracts, CSS received many millions of dollars annually from the City.  In 2018, the City refused to renew this particular FCA contract with CSS because it learned that CSS refused to comply with one condition of that contract—namely, that it not discriminate against same-sex couples who wish to be certified as eligible to be foster parents.  (It’s worth stressing, however, that Philadelphia has not entirely broken all ties with CSS in the context of foster-care services.  To the contrary:  CSS continues to receive many millions of dollars a year from the City to perform services as a “Community Umbrella Organization” (CUA), in which capacity it helps support foster children (such as in arranging for a child’s social services and doctor’s visits).  CSS also  operates two “congregate-care” facilities, which provide group housing for children in the City’s care (distinct from the foster-care system).) 

CSS sued the City, seeking only prospective relief:  It wishes to be able to once again enter into FHA contracts with the City, but to do so without complying with the antidiscrimination condition of such contracts.  CSS argues that the City violates CSS’s Free Exercise and Free Speech rights by insisting upon that condition.  Here is the antidiscrimination condition in question, which is included as Section 15.1 of every City contract with FHAs:

Provider shall not discriminate or permit discrimination against any individual on the basis of actual or perceived race, ethnicity, color, sex, sexual orientation, gender identity, religion, national origin, ancestry, age, disability, marital status, source of income, familial status, genetic information; domestic or sexual violence victim status; or Human Immunodeficiency Virus (“HIV”) infection status.

With that factual backdrop in place, we can now examine whether the Fulton case actually raises some of the questions that commentators (and CSS itself) have commonly assumed or alleged.

I.  The Denial of an FCA Contract Does Not Exclude CSS From its Historical Ministry of Caring for Children in Need

CSS has tried to frame the case by insisting that when the City denies CSS a contract as an FHA, that denial not only prevents CSS from receiving funds to perform the delegated state functions in question, but also prevents CSS from engaging in charitable functions it had performed outside the context of a government contract for decades before the State and the City monopolized those functions—functions that CSS allegedly would continue to perform if Philadelphia allowed it to do so.  According to CSS, Philadelphia has effectively “exclude[d] CSS from its historical ministry of caring for foster children.”  (CSS repeats this theme—that the City has “prevent[ed] CSS from pursuing its religious ministry”—throughout its briefs.  See also, for example, the amicus brief of the Christian Legal Society and other organizations, which hyperbolically and inaccurately asserts that “Philadelphia has entirely barred CSS from its religiously motivated work of helping children in need.”)  In other words, according to CSS this isn’t simply a case of a government regulating the terms of a contract itself, but one in which the City is leveraging its contracting power—and its legal monopoly over foster care services—to preclude CSS from exercising its religion outside the operation of the contract.  

This is simply mistaken.  Even without an FHA contract with Philadelphia, CSS is free to engage in virtually all of the charitable functions it has traditionally performed.  CSS can continue—as anyone can—to “serve[] all children in need”; to “care for foster children” as it’s done “for over 50 years”; and to “provide support” for foster families, such as “delivering wrapped presents” on Christmas eve.  (All quotations here are from CSS’s briefs.)  Indeed, CSS is not even precluded from offering assistance to children in the foster care system, and the families that care for them.  For one thing, CSS continues to receive $17 million dollars or so from the City of Philadelphia to serve as a CUA providing case-management services to foster children, and it continues to run two congregate-care facilities, which provide group housing for children who have been removed from their homes because of abuse or neglect.  CSS also remains free to use its own resources to provide further services to children in foster care, to recruit foster families, and to operate its private adoption program, in which it assists birth families who choose to place their infants for adoption.  

Over at the Volokh Conspiracy, Professor Barclay asserts, contrary to what I’ve written above, that the Fulton case is about “whether the government has the right to exclude a Catholic ministry from providing foster care services to vulnerable children,” something CSS has been doing “for over 200 years in Philadelphia.”  That characterization, however, appears to be based entirely on the statement by a CSS official, in response to a leading question by CSS’s lawyer, that CSS would “be breaking the law” if it “provide[d] foster-care services without a government contract.”  The CSS official didn’t elaborate on which “services” would allegedly break which “laws” and, in any event, his bald legal assertion about what Pennsylvania law prohibits simply isn’t correct.

The principal thing CSS cannot do without an FHA contract is to perform the delegated governmental function of deciding whether persons may be certified as eligible under state law to become foster parents to care for children in the City’s custody—to decide, in other words (and subject to review by the Commonwealth DHS), whether other private parties may obtain legal custody over yet a third group of private parties, namely, foster children.  And that is a function the Pennsylvania DHS would perform in the absence of a City contract with FCAs.  Just as importantly, it’s a function that a private agency such as CSS could never perform, using its own resources, outside its role as contractor of the City and delegate of the Pennsylvania DHS.  (Not surprisingly, CSS doesn’t argue that its religious ministry has historically included wielding governmental authority to determine whether other private parties may legally care for children.) 

One other point on this topic:   I’ve seen it argued that the real harm to CSS is that, without an FCA contract, it cannot make placement decisions--i.e., decisions about the homes into which particular children will be place.   (The court of appeals contributed to this misimpression by writing that an FCA “selects an appropriate foster parent for the child.")  Even with an FCA contract, however, an agency doesn’t have the legal authority to make a placement decision for a particular child.  That authority belongs to the City itself.  In the ordinary case, the City DHS works with a Community Umbrella Organization (such as CSS itself, which continues to have a CUA contract) to determine what level of care a child needs, and then sends out a “referral” of a particular child to all FCAs that work with families that can provide the necessary level of care (or, on occasion, only to a particular FCA, such as when that FCA has already placed the child’s sibling).  The FCAs then make proposals, or recommendations, to the DHS about potential family matches for the child; and then the City DHS decides where to place the child based upon the child's best interests (the state-law legal standard), by issuing a “provider location code” for that family to the relevant FCA that certified that family.  (To be sure, an agency without an FCA contract won’t receive a referral from the City in such a case.  But nothing in the law prevents such an agency from recommending a family to the City; and, in any event, CSS doesn’t argue that its free exercise of religion is abridged because it will, as a practical matter, have fewer opportunities to recommend child/family matches.) 

II.  The Nondiscrimination Requirement of the City’s Contract Would Not Require CSS to Endorse Same-Sex Marriages

CSS believes that same-sex marriage is immoral.  But what is its objection to performing an FCA’s role under a City contract, i.e., assessing whether same-sex couples meet the state-law criteria to be foster parents?  CSS claims that if it certifies such a couple, that will “signify” its “approval of a family” and that its approval will be tantamount to “an endorsement of the relationships of those living in the home.” 

That proposition, however, is predicated on a mistake about state law and the function that an FHA performs (not on a religious question).  As the very helpful, very short amicus brief of the Commonwealth of Pennsylvania explains, an FCA is required (and, indeed, permitted) only to assess whether the potential foster family meets the prescribed regulatory requirements, which do not include any assessment—let alone any endorsement—of the morality of a prospective foster parent’s marital status or relationship.

To be sure, the DHS regulations instruct an FCA to consider, among other factors, “[e]xisting family relationships, attitudes and expectations regarding the applicant’s own children and parent/child relationships, especially as they might affect a foster child.”  55 Pa. Code § 3700.64(b)(1).  As Pennsylvania explains, however, the regulations ask an FCA to consider a prospective foster parent’s “existing family relationships” only to the extent they bear on the determination of whether that person can “provide care, nurturing and supervision to children,” has “demonstrated stable mental and emotional adjustment,” and has “supportive community ties with family, friends, and neighbors.”  55 Pa. Code § 3700.64(a)-(b).  A person’s marital status—and especially the sex of the person to whom he or she is married—is simply irrelevant to this assessment, according to Pennsylvania.  (Indeed, over thirty percent of approved foster parents in recent years haven’t been married at all.)  “Pennsylvania cares about existing relationships only as they bear on the quality of care a prospective foster parent can provide.”

Think about it this way:  The FCA’s job is simply to do what the Commonwealth DHS itself would have done had that agency not delegated to the FCA its duty to perform that same function—namely, to assess whether the family satisfies the criteria for be able to assume custody of a foster child.  Because it would be impermissible for the Pennsylvania DHS to take into account the marital status, or nature of the marriage, of prospective foster parents, so, too, is an FCA precluded from considering such matters.  Indeed, if an FCA did refuse to approve a family based upon moral or religious opposition to same-sex marriage, the DHS Office of Hearings and Appeals would undoubtedly reverse that determination on appeal in a heartbeat, see 55 Pa. Code § 3700.72(d), on the ground that it was ultra vires—entirely outside the FCA’s remit.  

It follows that Pennsylvania law certainly doesn’t compel an FCA such as CSS to express views that it considers objectionable:  it does have to--and should not--declare anything one way or the other about the propriety of a same-sex marriage.  (I assume that CSS, in order to be safe and prevent any misimpression about the issue, could even expressly inform the Commonwealth DHS and the City of Philadelphia that its approval of a foster parent’s eligibility to care for children does not reflect CSS’s moral views, which remain unequivocally opposed to same-sex marriage.  The City agrees; in its brief it writes:  “DHS would not find CSS in violation of its contractual duties if it accompanied its certifications with an express statement that they do not constitute endorsements of the parents’ relationship.”) 

That, in turn, is another reason why CSS could not demonstrate that the nondiscrimination condition of a Philadelphia FCA contract burdens its religious exercise.  Although courts may not second-guess whether someone’s “religious beliefs are mistaken” concerning what types of assistance to others’ allegedly sinful conduct violate the actor’s religious obligations, Hobby Lobby, 573 U.S. at 725, the judiciary need not defer to a litigant’s mistaken view about how a law operates—a purely legal, not a religious, question.  And that’s what we have here.

Similarly, CSS’s compelled speech claim depends upon its assumption that if it were to certify that a same-sex couple qualifies as foster parents, that would require CSS “to author a written document evaluating and endorsing same-sex and unmarried cohabitating relationships,” i.e., to “speak Philadelphia’s preferred message on marriage” (quotes from CSS’s brief).  Because that’s not true, CSS’s Free Speech claim should fail (and that’s wholly apart from the fact that CSS would only be required to make such certifications if it chooses to contract with the City, and accept tens of millions of dollars, to do so, as a government agent—something it could obviously choose not to do).  (CSS argues that when an FCA makes such a certification it is not doing so as an agent of the City of Philadelphia.  That may be true—perhaps it is “only” a Philadelphia contractor.  But certainly an FHA is acting as an agent of the government entity that delegated it the responsibility to perform that government function—namely, the Pennsylvania Department of Human Services.)

* * * *

In its brief, CSS repeatedly insists that “Philadelphia attempted to coerce a church to speak an unfunded message it opposes in exchange for participating in a ministry it has performed for two centuries.”  As we’ve seen, though, both prongs of this alleged “Hobson’s Choice” are nonexistent.  The nondiscrimination condition of an FCA contact would not require CSS to speak a message it opposes.  And the City's refusal to contract with CSS because it won’t comply with that requirement wouldn’t prevent CSS from “participating in a ministry it has performed for two centuries.”

III.  Fulton Isn’t a Fit Case for the Court to Decide Whether to Overrule Employment Division v. Smith 

The second Question Presented in Fulton is “[w]hether Employment Division v. Smith should be revisited.”  Dozens of briefs on each side of the case have been filed on this question.  But it’ll be shocking if the Court answers it, because it’s very hard to see how the outcome in the case can possibly depend on whether the Court overrules its 1990 decision in Smith.

To remind you what Smith was about:  In a majority opinion written by Justice Scalia, the Court held, in effect, that if a law doesn’t discriminate against religion—if it is “neutral” and “generally applicable”—the Free Exercise Clause does not require the government to grant exemptions to persons when the law conflicts with their religious beliefs or obligations.  That holding effectively repudiated a more robust free exercise jurisprudence the Court had articulated in a series of cases between 1963 and 1990—particularly in Sherbert v. Verner (1963) and Wisconsin v. Yoder (1972), the two leading cases in which the Court recognized that religious exemptions were constitutionally required.  (In the decades preceding Smith, the Court had not applied the Sherbert/Yoder “heightened scrutiny” test very restrictively:  It was, in Chip Lupu’s words, “strict in theory, but ever-so-gentle in fact.”  One major reason the Court ruled as it did in Smith was to end the charade it had created.)

Some Justices in recent years have questioned whether Smith was rightly decided.  Whatever the right answer to that question might be, though, Fulton is just about the worst vehicle imaginable for resolving it, because the dispute in the case doesn’t turn on that question.

On the one hand, even if the Court were to overrule Smith and revive the pre-Smith Free Exercise doctrine, CSS would almost certainly lose under that doctrine, assuming that the City’s nondiscrimination condition for FCA contractors is neutral and generally applicable, because the law at issue here is merely a condition on how a government contractor is required to perform the terms of the contract in a context where the contractor is performing governmental functions delegated to it by a government agency (and appealable to that same agency)—namely, determining whether other private actors satisfy state-law requirements to be custodians for foster children who’ve been in the City’s custody.  In this setting, the contractor is, in effect, an agent of the government, just as a government employee is, and the condition applies only to the contractor’s performance of the contract itself, with the use of state funds; it does not limit the contractor’s independent, outside activities, which (as I explain above) remain unimpaired.  

Therefore even if we were back under the Sherbert/Yoder regime, any burden on CSS’s religious exercise would not be constitutionally cognizable, just as there’s no constitutionally problematic burden when a government’s internal functions have a destructive impact on someone’s ability to practice religion (see Bowen v. Roy (1986); Lyng v. Northwest Indian Cemetery Protective Ass’n (1988)), and just as a government employee or contractor does not suffer any constitutionally meaningful free-speech injury when the government regulates her speech solely in her employment or contractor capacity.  (For much more on this argument, see the excellent treatments in Part I-A of Philadelphia’s brief and in Part I of the private intervenor respondents’ brief.) 

On the other hand, the U.S. Solicitor General’s brief focuses almost entirely on trying to demonstrate that Philadelphia’s nondiscrimination condition for FCA contractors is not neutral and generally applicable (at least not in practice), and that the City has treated CSS less favorably than other private contractors, allegedly because of the religious nature of its objection to the condition.  Similarly, in its reply brief CSS overwhelmingly focuses on a similar argument that the nondiscrimination condition isn’t neutral and generally applicable.  If the SG and CSS were right about that, then even under Smith, Philadelphia would be hard-pressed to defend the judgment below in its favor, notwithstanding the government contracting context in which the case arises.

Either way, deciding whether Smith was correctly decided, and whether the Court should overrule it despite stare decisis, will almost surely not affect the outcome.  Therefore I’d be very surprised if the Court reaches the question of Smith’s fate in Fulton.

IV.  The Key Question:  Whether Philadelphia’s Nondiscrimination Condition is Neutral and Generally Applicable

This brings us, finally, to what I expect the Court’s decision in Fulton will turn upon—namely, whether five or more Justices conclude that the requirement in Philadelphia’s current contract that HCA contractors not discriminate on the basis of the listed characteristics, including sexual orientation, is or is not neutral and generally applicable with respect to contractors who wish to disregard that condition on religious grounds.  If that condition is not neutral and generally applicable with respect to religion—if Philadelphia is, in essence, discriminating against CSS because its objections to the condition are based on its religious views—then Philadelphia would be hard-pressed to justify that anti-religious discrimination, even under Smith and subsequent cases (in particular, Church of Lukumi Babalu Aye, Inc. v. City of Hialeah (1993)), in which case it would be required to grant CSS an exemption, even in the contracting context.

The Solicitor General and CSS argue that the standard contract’s antidiscrimination condition isn’t “generally applicable” because the City allegedly has “granted de facto exemptions” for non-religiously motivated instances of discrimination on the basis of race and other protected characteristics; and that the City’s decision to impose the nondiscrimination provision is itself a product of religious animus against CSS.

The City, by contrast, argues that it hasn’t allowed any exemptions to its nondiscrimination condition—that the prohibition is categorical; that it did not promulgate that condition in order to target CSS’s religious motivations; and that, in any event, the contract condition going forward is certainly not biased against religious objectors:  it applies equally to all FCA contractors, whether or not their discrimination would be religiously motivated.

The arguments on this question are extremely fact-intensive and this post is long enough already.  Perhaps I’ll have more to say about the neutrality and general applicability arguments after hearing what the Justices and advocates have to say about it during the oral argument.  For now, I’ll simply make three quick points:

• Based upon my reading of the record, Philadelphia has not allowed other FCAs to violate the nondiscrimination condition, and certainly hasn’t allowed any FCA to categorically refuse working with any applicants for foster parenthood on the basis of one of the proscribed characteristics, as CSS would do with same-sex couples. 

• In any event, and as the SG explains in his brief, there isn’t a constitutional problem unless “the secular conduct exempted [is] comparable to the religious conduct with respect to, or otherwise materially undermine[s], the asserted governmental interest.”  The SG offers an example of a jurisdiction that includes an exception to murder laws for homicide motivated by self-defense but not religious belief—such a distinction obviously wouldn’t trigger strict scrutiny.  Strict scrutiny would apply, however, writes the SG, “where a law, by its terms or through its manner of enforcement, ‘fail[s] to prohibit nonreligious conduct that endangers [the asserted] interests in a similar or greater degree than [religious conduct]” (quoting Lukumi).  I don't see how any purported past exemptions here would endanger Philadelphia’s interest in a similar or greater degree than would allowing CSS and other religiously motivated FCAs to categorically refuse to work with parts of the City population on the basis of sexual orientation or some other proscribed characteristic.  Accordingly, even taking the SG’s alleged “de facto” exemptions at face value, they wouldn’t trigger heightened scrutiny here on the SG’s own account of the test for “general applicability.”

• The Philadelphia City Council and a City administrative official each made comments that were constitutionally inappropriate for government officials to make.  The Council (which didn’t have any role in promulgating the contractual condition) passed a resolution that condemned “discrimination that occurs under the guise of religious freedom,” thereby suggesting, deliberately or not, that CSS’s religious objection was insincere.  And according to a CSS official, the City administrator said in a conversation with CSS that she wishes Catholics such as herself and the CSS officials would follow the teachings of Pope Francis rather than those of the local Archbishop and Archdiocese—a comment that might have been well-meaning but that involves a religious dispute about which government officials should not opine.

Even though those comments were inappropriate, I don’t believe the record supports the argument that Philadelphia imposed its nondiscrimination condition because of any religious animus against CSS.  And, in any event, I think it’s clear that the current, categorical prohibition on discrimination in the City’s new standard contract reflects a serious, unequivocal commitment by the City, going forward, that no FCA should discriminate against families on the basis of any of the listed criteria, regardless of whether the FCA in question is motivated by religious views or anything else.  That is to say:  It’s virtually inconceivable that Philadelphia might in the future allow an FCA to discriminate on the basis of sexual orientation (or race, sex, etc.) based upon nonreligious objections to same-sex marriage—and therefore it’s religious FCAs won't be singled out for disfavored treatment.  Because this case is only about whether the Constitution gives CSS a right to disregard that condition in future contracts, I don’t see how CSS can demonstrate that the condition would not exist but for religious discrimination.

Whether or not a majority of the Court agrees with me on these questions, the important point for purposes of this post is that I think this—the question of anti-religious discrimination—is where the action is, and will be, in the Fulton case.