Sharonell Fulton v. City of Philadelphia
922 F.3d 140
3rd Cir.2019Background
- Catholic Social Services (CSS), a religious nonprofit foster-care agency in Philadelphia, refused to certify same‑sex couples as foster parents based on Catholic teaching; no same‑sex couples had applied to CSS according to the record.
- After a newspaper report, Philadelphia Department of Human Services (DHS) investigated and implemented an "intake freeze" on new foster referrals to CSS (and Bethany Christian); existing placements and CSS’s other contracted services (congregate care, community umbrella) were unaffected.
- The City informed CSS that future contract renewals would require compliance with the City’s non‑discrimination obligations (including sexual orientation) and that the City could decline to renew the contract if CSS would not comply.
- CSS sued, asserting Free Exercise, Establishment, and Free Speech claims under the U.S. Constitution and a Pennsylvania RFPA claim; it sought a preliminary injunction to force the City to resume referrals and renew its contract.
- The District Court held a three‑day evidentiary hearing, denied preliminary injunctive relief, and this appeal followed; the Third Circuit reviews the record de novo for First Amendment issues and affirms the denial.
Issues
| Issue | Plaintiff's Argument (Fulton/CSS) | Defendant's Argument (City of Philadelphia) | Held |
|---|---|---|---|
| Free Exercise — applicability of neutral, generally applicable law | City’s nondiscrimination requirement burdens CSS’s religiously motivated conduct and is not neutral/general; City targeted CSS for religion | City enforced a neutral, generally applicable nondiscrimination policy to prohibit sexual‑orientation discrimination in publicly funded foster services | CSS unlikely to succeed; policy is neutral and generally applicable and record lacks evidence of religious targeting |
| Establishment Clause — coerced adoption of City‑preferred religious view | City conditioned contract renewal on CSS abandoning its religious view and following certain religious leaders (e.g., Pope Francis) | City sought enforcement of secular nondiscrimination rules, continued other relationships with CSS and other religious agencies | CSS unlikely to succeed; no evidence City favored or disfavored particular religious viewpoints |
| Free Speech — compelled speech and retaliation | Requirement to evaluate and give written approval/denial forces CSS to endorse views contrary to its beliefs; City retaliated for CSS’s statements | Speech occurs in performance of a government contract/public function; City regulation is regulatory, not punitive; City may condition contracts on nondiscrimination | CSS unlikely to succeed on compelled‑speech or retaliation claims |
| Pennsylvania RFPA (state statutory protection) | City’s contract condition substantially burdens CSS’s religious exercise and forces a choice between faith and ministry | Even if burden exists, preventing discrimination is a compelling interest and the City’s approach is least restrictive means | CSS unlikely to succeed; under RFPA strict scrutiny City’s anti‑discrimination interest is compelling and measures are narrowly tailored |
Key Cases Cited
- Employment Div. v. Smith, 494 U.S. 872 (1990) (religious beliefs do not exempt parties from neutral, generally applicable laws)
- Church of the Lukumi Babalu Aye v. City of Hialeah, 508 U.S. 520 (1993) (laws targeting religious practice require strict scrutiny)
- Masterpiece Cakeshop, Ltd. v. Colorado Civil Rights Comm’n, 138 S. Ct. 1719 (2018) (government must avoid religious hostility and must give neutral respectful consideration)
- Tenafly Eruv Ass’n v. Borough of Tenafly, 309 F.3d 144 (3d Cir. 2002) (disparate enforcement against religious practice triggers heightened scrutiny)
- Trinity Lutheran Church v. Comer, 137 S. Ct. 2012 (2017) (disallowing public benefits to religious institutions can violate the Free Exercise Clause)
- Rust v. Sullivan, 500 U.S. 173 (1991) (government may place conditions on funds without violating free speech where conditions regulate government programs)
- Agency for Int’l Dev. v. Alliance for Open Soc’y Int’l, 570 U.S. 205 (2013) (government may not compel organizations to adopt the government’s views as a condition of funding)
- West Virginia Bd. of Ed. v. Barnette, 319 U.S. 624 (1943) (First Amendment protects right not to speak)
- Burwell v. Hobby Lobby Stores, Inc., 573 U.S. 682 (2014) (strict scrutiny under RFRA for substantial burdens on religious exercise)
- Roberts v. United States Jaycees, 468 U.S. 609 (1984) (eradicating discrimination is a compelling governmental interest)