The U.S. Supreme Court ruled in Fulton v. City of Philadelphia that the City of Philadelphia violated the Free Exercise Clause of the First Amendment by failing to give Catholic Social Services (CSS) an exemption from the nondiscrimination provision in city contracts for foster care providers, even though the contract authorized exemptions and the City had granted exemptions to other providers.  The opinion by the court written by Chief Justice Roberts was joined by Justices Breyer, Kagan, Barrett, Kavanaugh, and Sotomayor. The decision was unanimous.

The case involves the City of Philadelphia’s child welfare program, in which the City contracts with private agencies to provide foster care services and requires all contractors to refrain from discrimination when providing services on behalf of the City. CSS filed suit in 2018, claiming a constitutional right to violate the City’s non-discrimination requirement. CSS is unwilling to certify same-sex couples as potential foster parents when providing services for the City. The district court denied CSS’s motion for a preliminary injunction, and the Third Circuit Court of Appeals affirmed the district court. In February 2020, the U.S. Supreme Court granted review, and on June 17, 2021, ruled that the City of Philadelphia violated the Free Exercise Clause by providing a discretionary exemption to its nondiscrimination requirement rather than a generally applicable rule.

The ruling in Fulton reaffirms the rule that governments can prohibit religious entities from discriminating or causing other harms so long as it does so in a general rule that applies to everyone.  The City of Philadelphia, and all other governments, can prohibit anti-LGBTQ discrimination, including discrimination by religious entities. In his concurrence, Justice Alito wrote, “with a flick of a pen, municipal lawyers may rewrite the City’s contract” and continue to prohibit this discrimination. 

On August 19, 2020, the Center for the Study of Social Policy (CSSP) and National Center for Lesbian Rights filed an amicus brief in the case before the Supreme Court. This brief highlights the government’s compelling interests in protecting children and eliminating discrimination in the child welfare system. The government’s interest in preventing discrimination is particularly urgent and important because experience and research have shown that nationwide, the current child welfare system is plagued by bias and discrimination based on race, national origin, religion, gender, disability, sexual orientation, and gender identity.

The brief notes that families of color, parents who are poor or with low incomes, parents with disabilities, and LGBTQ parents are far more likely to be investigated and to have their children removed from their homes based on bias and negative stereotypes, which causes great harm both to the children and to their families. As Professor Nancy Polikoff has written about, a study of Black mothers with low incomes in 2016 indicated that lesbian or bisexual participants were more than four times likelier than heterosexual participants to have lost their children to the state in child welfare proceedings.

Non-discrimination requirements are extremely important in the child welfare system because the stakes are so high, the brief explains. Decisions based on bias lead to children being taken away from their families when there is no valid reason to do so, and can also lead to children being placed in foster homes where they will encounter discrimination or even abuse. The decision in Fulton preserves the critical ability of governments to prohibit such rampant discrimination, which is an urgent need.