Fulton v. City of Phila.
320 F. Supp. 3d 661
E.D. Pa.2018Background
- Catholic Social Services (CSS) is a DHS-contracted Philadelphia foster-care agency; its Services Contract incorporates the Philadelphia Fair Practices Ordinance (all‑comers/non‑discrimination) and requires CSS to recruit, screen, train, and certify resource caregivers.
- In March 2018 DHS learned CSS and another agency (Bethany) would not certify or provide home studies for same‑sex couples; DHS closed intake for new referrals to those agencies pending review and exceptions in children’s best interests.
- CSS sued seeking a temporary restraining order / preliminary injunction compelling DHS to resume referrals and arguing constitutional and state‑law violations (Free Exercise, Establishment, Free Speech, and Pennsylvania Religious Freedom Act). An evidentiary hearing was held June 18–21, 2018.
- DHS offered to renew CSS’s contract on standard terms and also proposed an alternative contract that would permit continued support if CSS could not meet the all‑comers obligations; DHS expressed preference to continue working with CSS if it complied with contractual obligations.
- The court found CSS’s certification/home‑study duties fall within the Services Contract and that those services constitute public accommodations under the Fair Practices Ordinance, so the contract requires non‑discriminatory provision of those services.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Does Services Contract incorporate and require compliance with the Fair Practices Ordinance for CSS’s foster‑certification services? | CSS argued its religious exercise exempts it from the all‑comers requirement. | DHS argued the contract expressly incorporates the Fair Practices Ordinance and covers certification/home studies. | Held: Contract unambiguously incorporates the Ordinance; certification/home‑study services are public accommodations and must be provided nondiscriminatorily. |
| Does application of the contract/Ordinance violate Free Exercise (federal) such that strict scrutiny applies? | CSS claimed enforcement targets its religious beliefs and substantially burdens its religious exercise. | DHS argued the contract and Ordinance are neutral and generally applicable; rational‑basis review applies and the enforcement furthers legitimate government interests. | Held: Law is neutral and generally applicable; rational‑basis review applies; DHS’s enforcement is rationally related to legitimate governmental interests; CSS unlikely to succeed. |
| Does enforcement violate Pennsylvania Religious Freedom Act (RFPA)? | CSS claimed RFPA protects its foster‑care as a fundamental religious exercise and that enforcement substantially burdens that exercise. | DHS argued RFPA’s substantial‑burden threshold is high and contract obligations do not substantially burden CSS’s ability to provide foster care. | Held: Even assuming foster care is a fundamental exercise, CSS is not likely to show a clear‑and‑convincing substantial burden under RFPA. |
| Do Free Speech / compelled‑speech or retaliation theories bar conditioning contract performance on nondiscrimination? | CSS argued certification/home study requirements compel unpaid speech and DHS retaliated against CSS for public statements. | DHS argued contracted services are governmental in nature (governmental speech/contracting) and the intake closure responded to contractual noncompliance, not viewpoint. | Held: Court found services are governmental/contractual (permissible conditioning) and insufficient evidence of retaliatory viewpoint discrimination; free‑speech claims unlikely to prevail. |
Key Cases Cited
- Groupe SEB USA, Inc. v. Euro‑Pro Operating LLC, 774 F.3d 192 (3d Cir. 2014) (preliminary injunction is an extraordinary remedy and requires a clear showing)
- Winter v. Natural Res. Def. Council, 555 U.S. 7 (2008) (standard for preliminary injunctions)
- Reilly v. City of Harrisburg, 858 F.3d 173 (3d Cir. 2017) (gateway factors: likelihood of success and irreparable harm)
- Christian Legal Soc'y v. Martinez, 561 U.S. 661 (2010) (upholding neutral all‑comers policy for recognized student organizations)
- Employment Div., Dept. of Human Res. v. Smith, 494 U.S. 872 (1990) (neutral, generally applicable laws receive rational‑basis review under Free Exercise Clause)
- Legal Servs. Corp. v. Velazquez, 531 U.S. 533 (2001) (distinguishing government funding that facilitates private speech from funding that conveys governmental message)
- Locke v. Davey, 540 U.S. 712 (2004) (government may decline to fund certain religious instruction without violating Free Exercise)
- Teen Ranch, Inc. v. Udow, 479 F.3d 403 (6th Cir. 2007) (upholding state action restricting placements where contractor's policies conflicted with statutory/contractual duties)
- Masterpiece Cakeshop v. Colorado Civil Rights Comm'n, 138 S. Ct. 1719 (2018) (narrow holding emphasizing tolerance and problematic governmental hostility toward religion)
- Heart of Atlanta Motel, Inc. v. United States, 379 U.S. 241 (1964) (governmental interest in preventing discrimination in public accommodations)