Fulton v. Philadelphia

Brief Filed: 8/20
Court: U.S. Supreme Court
Year of Decision: 2021

Read full-text amicus brief (PDF, 362KB)opens in new window

Whether the Supreme Court’s prior decision in Employment Division v. Smith, holding that an individual’s religious beliefs do not “excuse him from compliance with an otherwise valid law prohibiting conduct that the State is free to regulate,” should be overruled.

Sexual Orientation—General (Discrimination); Sexual Orientation—Custody

Catholic Social Services (“CSS”), a private foster care agency, had a contract with the City of Philadelphia to help place children with foster families. CSS has a policy against placing children with same-sex parents. After discovering this policy, Philadelphia stopped placements with CSS. Petitioners—i.e., CSS and foster parents who use the agency—then sued Philadelphia, arguing that its decision to stop placements violated their First Amendment rights to religious freedom and free speech. In their brief to the Supreme Court, petitioners argued that Philadelphia was penalizing them for their religious opposition to same-sex marriage, and that the City was attempting to compel their endorsement of same-sex relationships by requiring them to prepare foster care “home studies” that evaluate same-sex couples’ suitability as parents. They maintained that Philadelphia’s claimed interest in preventing discrimination was insufficient to outweigh their First Amendment rights, and that the government’s refusal to place foster children with CSS was more restrictive than necessary to fulfill that interest.

APA’s brief, joined by the American Academy of Pediatrics, the American Medical Association and the American Psychiatric Association, argues that the city has a compelling reason to try to eliminate discrimination based on sexual orientation and cites scientific evidence that children in foster care should have access to all qualified families.

In a unanimous decision, the Court found that Catholic Social Services, a private foster care agency that has a contract with the city, can refuse on religious grounds to place foster children with same-sex couples. Philadelphia’s Fair Practices Ordinance bars discrimination based on sexual orientation.