Supreme Court Hears Argument on Catholic Social Services Claim for a Religious Freedom Exemption from Philadelphia Anti-Discrimination Policy

Eric Lesh
7 min readMay 26, 2021


By Hannah McMillan

On November 4 the U.S. Supreme Court heard oral arguments from Lori Windham, of the Becket Fund for Religious Liberty, and Hashim Mooppan, Counselor to the U.S. Solicitor General, for the plaintiffs in Fulton v. City of Philadelphia, №19–123, in which Catholic Social Services (CSS) is challenging the City of Philadelphia’s refusal to renew its contract with CSS to evaluate married same-sex couples as potential foster parents. The City of Philadelphia was represented by Neal Katyal, a former Solicitor General in the Obama administration, and the Support Center for Child Advocates and Family Pride was represented by Jeff Fisher.

The case comes before the Supreme Court after both the U.S. District Court for the Easter District of Pennsylvania (320 F.Supp.3d 661) and U.S. Court of Appeals for the 3rd Circuit (922 F.3d 140) denied CSS’s motion for a preliminary injunction, both courts finding that the City was likely to sustain its position that it has a right to enforce its non-discrimination ordinances if the agency is carrying out a governmental function. Fulton v. City of Philadelphia presents the Supreme Court with competing interpretations of the First Amendment’s protection of the free exercise of religion and the implication for anti-discrimination laws. Main arguments made by each side included defining the extent to which CSS operated on behalf of the City in carrying out a governmental function when executing its foster contract.

After an investigation prompted by advance notice that a local newspaper would be publishing a story about the refusal of some religious foster care agencies to provide services to same-sex couples, the City of Philadelphia declared that CSS must comply with the City’s Fair Practice Ordinances or risk losing its contract. In the course of oral argument, the Court made efforts to clarify whether CSS should be seen as a contractor or a licensee. Windham pointed out that CSS is an independent contractor of the City, asserting, “The City is reaching out and telling a private religious ministry… how to run its internal affairs and trying to coerce it to make statements contrary to its religious beliefs as a condition of continuing to participate in the religious exercise.” Tr. of Oral Arg. p. 10, 1–7.

CSS, which continues to perform other social service functions for the City, has received funding to screen prospective foster parents, and continues to receive millions of dollars for other social services programs. As Mr. Katyal pointed out, once the City became aware that CSS was not operating within requirements of the foster care contract, the City worried about becoming a party to discrimination.

Justice Sotomayor questioned why CSS sees itself as a “licensee as opposed to a government contractor.” Meaning either the City contracted the agency to perform for them at a contracted price, or licensed CSS to perform the operations they had been performing. Ms. Windham argued that the City exercises licensing authority because it selects which private agencies are authorized to perform the service of evaluating prospective foster parents to receive placements of children referred by the City. Justice Sotomayor recalled that the Court has often permitted cases “with people who are not state actors or agents or actual employees but contractors or being retained by the government to do things for the government where they can set the criteria for what it wants.” Tr. of Oral Arg. p. 19, 1–6.

Windham argued that the City had demanded that CSS take actions in opposition to the organization’s faith allegiance, and in accordance with the City’s Fair Practice Ordinances, or else it would be excluded, which the Free Exercise Clause prohibits. Justice Sotomayor pointed out the slippery slope for a contractor with religious belief to “exclude other religions from being families, someone with disabilities, or interracial couples.” Tr. of Oral Arg. p. 20, 1–5.

CSS argued that home certification for a same-sex couple would violate its religious beliefs because it is “essentially a validation of their relationships in the home, and the relationship of the foster wants.” Tr. of Oral Arg. p. 11, 14–19. Justice Barrett posed a hypothetical: what if the agency believed interracial marriage was an offense to God, and objected to an interracial couple as foster parents? Ms. Windham refuted the hypothetical based on Loving v. Virginia, which held that the government has a compelling interest in eradicating racial discrimination. Justice Sotomayor explained that a compelling state interest includes the avoidance of stigmatizing a class of people. Justice Kennedy had previously expressed this view in Lawrence v. Texas, under an Equal Protection claim that all persons are entitled to a basic level of dignity. Rules that are erected to strip individuals of dignity and to impose stigma violate this principle.

The Petitioners then discussed exemptions issued by the City from and argued that because the City itself issues exemptions; CSS should be allowed to reject same-sex couples as foster parents. Ms. Windham discussed the City’s granting of exemptions from its Fair Practice Ordinances, particularly for those who have a disability and cannot appropriately care for foster children but are protected under the ordinances. The understanding of the exemptions provided is that there are categorical exemptions. Whenever an agency conducts a home study, it considers disability, marital status, and familial status. These actions are prohibited by the City’s Fair Practice Ordinances. Ms. Windham stated that the City itself deviates from these Ordinances when considering placing a child with foster parents, as it allows these judgments to be made. These exemptions happen, however, at the placement stage, not during home studies, and ensure the best fit for a child. With regard to the exemption for disabilities, Mr. Katyal explained that because state law requires foster care agencies to have a special license for disability needs, it is not discrimination but rather specialization to meet a child’s needs. The City argued that Employment Division v. Smith should be applied and permits laws that infringe upon religious beliefs, as long as they are neutrally applied. Employment Div., Dep’t of Human Res. of Oregon v. Smith, 494 U.S. 872 (1990). Windham and Moopan argued that the instant policy is neither neutral nor generally applicable and that Employment Division should be overruled, a case that Justice Gorsuch had found controversial. Ms. Windham argued that, even under Smith, Fulton and CSS would still prevail because the ruling is confusing and unstable as it “does not control when the government uses a system of individualized exemptions or when it makes other exceptions that undermine its rules or when it changes the rules to prohibit a religious practice.” Smith, in the eyes of the Petitioners, had a narrow view of the Free Exercise Clause and “stands in the way of sensible results.” Tr. of Oral Arg. p. 118, 1–3.

The Court seemed to want to avoid answering such a heavy constitutional issue regarding the limits of the Free Exercise Clause and anti-discrimination laws. Justice Breyer was concerned with finding a balance to follow the City’s requirements in such a way as not to offend anyone’s beliefs, to evaluate the couple “irrespective of whether they are same-sex or different-sex”, and to determine if they are suitable for a foster placement. Windham responded that this would still violate their religious beliefs, as it is a written endorsement of the relationship. Some of the Justices, particularly Breyer and Kavanaugh, seemed to want to avoid addressing a major constitutional issue when they saw no real dispute, as CSS had not actively denied many same-sex couples. This was clear in Justice Kavanaugh’s line of questioning, that all levels of government “where possible and appropriate, should look for ways to accommodate both interests in reasonable ways… There are strong — very strong feelings on all sides that warrant respect… It seems like Philadelphia created a clash, it seems, and was looking for a fight and has brought that serious, controversial fight all the way to the Supreme Court.” Tr. of Oral Arg. p.81, 12–21. Mr. Katyal argued that it was clear that the Respondents were not in search of bringing the case to the Supreme Court, as both courts below ruled in their favor and they resolved any allegations about religious hostility. Additionally, Justice Alito stated that, if everyone were being honest, it was not about ensuring the rights of same-sex couples, rather that “the city can’t stand the message that Catholic Social Services and the Archdiocese are sending by continuing to adhere to the old-fashioned view about marriage.” Tr. Oral Arg. p. 69, 8–11. The Respondents stated that, to the contrary, the City would like to widen the pool of applicants and avoid stigma towards same-sex couples.

With the current makeup of the Court, the outcome may favor CSS, though possibly avoiding the constitutional issues of religious freedom and civil liberties and potentially putting anti-discrimination laws in jeopardy. The implications of a ruling in favor of CSS might lead to wider exemptions to non-discrimination laws, including contractors’ refusal to provide services to other religious groups, if they cite their own religious convictions. LGBT children in the foster care system may also be subjected to discrimination as well as stigma, preventing children from being placed in loving homes. Ideally, this case will be decided in such a way as to allow for a wider pool of applicants as well as permit CSS to continue its work without inflicting stigma upon vulnerable and historically marginalized LGBT youth.



Eric Lesh

Executive Director, LeGaL @lgbtbarny. Attorney promoting justice in & through the legal profession for the #LGBT community. 40 Best LGBT Lawyers Under 40.