The gratitude we owe to all those working to better the lives of Philadelphia's most vulnerable children is too great to convey in words. While our gratitude is ultimately ineffable, the Court still begins by recognizing the Parties in this case for their many years of sacrifice and labor. The Court thanks Sharonell Fulton, Cecelia Paul, Toni Lynn Simms-Busch, Catholic Social Services ("CSS"), the City of Philadelphia, the Department of Human Services ("DHS"), and the Commission on Human Relations for their individual sacrifices and contributions in service of Philadelphia's children and its families. As witnesses called to testify in this case have made clear, fostering children is challenging
Until recent events, the Parties have had a fruitful relationship; a relationship that has benefited Philadelphia's children in immeasurable ways. For this reason, the Court would prefer that the Parties seek out some compromise to their current dispute without court intervention. Creative problem solving through concerted and thoughtful discourse without court intervention is often the best method to avoid what may appear to the parties, or to other persons in the public, to be harsh legal results. Still, when parties place a matter before the Court, the Court must act pursuant to its obligations under the law. Accordingly, the Court turns to the legal matter presented in this case.
Before the Court are Plaintiffs' Motion For A Temporary Restraining Order And Preliminary Injunction ("Injunction Motion") (ECF No. 13),
I. PROCEDURAL BACKGROUND
On May 17, 2018, Plaintiffs asserted sixteen causes of action against Defendants related to, among other things, Defendants' suspension of referrals of new children to Plaintiffs' care and Defendants' alleged violations of Plaintiffs' religious and free speech rights. See generally Compl., ECF No. 1; but see Mem. of Law Supp. Pl.s' Injunction Mot. 8 (asserting that CSS "filed a complaint in this Court on May 16, 2018"). Nineteen days later,
II. FACTUAL BACKGROUND
A. CSS's Services Contract With DHS And Philadelphia
It is an intractable tragedy that children in our community are sometimes unable to remain in their own homes. Pennsylvania has, in response to this tragic reality, charged individual county agencies with the duty of establishing a system to address the well-being of these children consistent with the best interests of each child. Jun. 19, 2018 Hr'g Tr. 152:18-24 (Figueroa). In Philadelphia County, the county agency charged with this duty is DHS. In performing its duty, DHS contracts with a number of private foster care agencies. Jun. 18, 2018 Hr'g Tr. 87:2-4 (Ali). Presently, DHS has contracts with thirty private foster care agencies. Jun. 19, 2018 Hr'g Tr. 155:14-16 (Figueroa). Each of these private foster care agencies is expected to provide foster care services consistent with a services contract with DHS. See, e.g. , Jun. 19, 2018 Hr'g Tr. 162:2-12 (Figueroa) (indicating that CSS's services, as a foster agency, are provided under contract with DHS and Philadelphia); Jun. 21, 2018 Hr'g Tr. 12:15-16 (Figueroa)
In November 2015, DHS and CSS entered into Contract Number 16-20030 ("Services Contract") for certain professional services. Decl. of James Amato Ex. A, ECF p. 13 of 52, ECF No. 13-3 (showing that the original contract was executed in November 2015 and recounting the various amendments since initial execution); see also Decl. of James Amato Ex. A, ECF p. 39 of 52, ECF No. 13-3 (identifying the Services Contract as a "Professional Services Contract ... for Department of Human Services Contracts"). As provided in the Statement of Purpose section of the Services Contract, the Services Contract was:
made and entered into between Catholic Social Services (the Provider) and the Philadelphia Department of Human Services (DHS), and sets forth the services for general, kinship, and teen parent/baby resource home care.
Decl. of James Amato Ex. A, ECF p. 27 of 52, ECF No. 13-3. Under the Scope of Services section of the Services Contract, CSS was to ensure that, among other things, resourcе caregivers (foster parents) would be "screened, trained, and certified by the Provider [CSS]."
CSS was to provide the services set forth under the Scope of Services section of the Services Contract in accordance with certain criteria, including criteria under Section 3.21 of the Services Contracts' General Provisions and Article XV: Additional Representations and Covenants of Provider Relating to Certain Applicable Laws.
Section 3.21 limits the reasons that CSS may refuse to provide the services required under the Services Contract. Section 3.21 provides that CSS:
shall not reject a child or family for Services based upon the location or condition of the family's residence, their environmental or social condition, or for any other reason if the profiles of such child or family are consistent with Provider's Scope of Services or DHS's applicable standards as listed in the [Services Contract], unless an exception is granted by the Commissioner or the Commissioner's designee, in his/her sole discretion.
Decl. of James Amato Ex. B, ECF p. 14 of 39, ECF No. 13-4.
Article XV of the Services Contract further limits the reasons that CSS may refuse to provide the services required under the Services Contract by incorporating into the Services Contract various laws, ordinances, regulations, and executive orders. In particular, Article XV incorporates provisions of the Philadelphia Fair Practices Ordinance relating to non-discrimination and serving all-comers who
.... Provider further represents, warrants and covenants that ... Provider is in compliance with the laws, ordinances, regulations and executive orders described below.
15.1 Non-Discrimination; Fair Practices. This Contract is entered into under the terms of the Charter, the Fair Practices Ordinance (Chapter 9-1100 of the Code) .... Provider shall not discriminate or permit discrimination against any individual because of race, color, religion or national origin. Nor shall Provider discriminate or permit discrimination against individuals in ... public accommodation7 practices whether by direct or indirect practice of exclusion, distinction, restriction, segregation, limitation, refusal, denial, differentiation or preference in the treatment of a person on the basis of ... sex, sexual orientation, gender identity, marital status, familiar [sic] status... or engage in any other act or practice made unlawful under the Charter....
Decl. of James Amato Ex. C, ECF p. 18-19 of 39, ECF No. 13-5 (emphasis added). In the event of CSS's breach of its covenant under Article XV, DHS and Philadelphia would be permitted "in addition to any other rights or remedies available under this Contract, at law or in equity, [to] suspend or terminate this Contract forthwith." Decl. of James Amato Ex. C, ECF p. 19 of 39, ECF No. 13-5.
In exchange for "the Services and Materials being provided under" the Services Contract, DHS and Philadelphia agreed to "set the amount of compensation payable to [CSS] for the current contract term at [$19,430,999.00]." Decl. of James Amato Ex. A, ECF p. 15 of 52, ECF No. 13-3. Despite this lump sum amount, as a matter of practice, payment to CSS was made on a per diem basis pegged to the number of children under its care. See Jun. 21, 2018 Hr'g Tr. 11:4-7 (Figueroa) (testifying that many contractors are paid on a per diem basis); Jun. 21, 2018 Hr'g Tr. 139:20-24 (same) (Figueroa). That CSS was receiving significant public funds to perform its public service functions under the Services Contract is underscored by Section 3.30 of the General Provisions that provides "[CSS] shall identify the Department as a funding source in all literature, documents[,] reports or pamphlets which Provider publishes develops or produces in connection with this Contract." Decl. of James Amato Ex. B, ECF p. 21 of 39, ECF No. 13-4.
CSS and DHS proceeded under the Services Contract without dispute until March 2018, when DHS learned that it is CSS policy to not serve all-comers. In particular, it is CSS policy to refuse service to same-sex couples CSS services under the Services Contract.
B. March 2018: DHS Learns Of CSS's And Another Foster Agency's Refusal To Comply With Services Contract's All-Comers Provisions
On or about March 9, 2018, DHS Commissioner Figueroa came to believe that
Commissioner Figueroa's phone call with James Amato at CSS provided greater clarity regarding what services CSS refused to provide to same-sex couples and why CSS refused to provide those services. Jun. 21, 2018 Hr'g Tr. 3:18-24 (Figueroa). James Amato explained that there were two services that CSS would not provide to same-sex couples: (1) CSS would not certify same-sex couples as prospective foster parents even if the couples were otherwise eligible foster parents under state regulations, and (2) CSS would not provide a same-sex couple with a home study as part of a same-sex couple's application for adoption. Jun. 21, 2018 Hr'g Tr. 3:18-24 (Figueroa); see also Jun. 19, 2018 Hr'g Tr. 55:7-20 (Amato) (testifying that Commissioner Figueroa and another DHS officer asked Amato whether CSS would complete a home study for "a same-sex couple or individual" and that Amato confirmed that CSS would not complete such a home study for a couple and would only provide a home study for an individual if that individual was committed to living single). Amato explained that CSS would not provide these services on religious grounds. Jun. 21, 2018 Hr'g Tr. 3:18-24 (Figueroa). Amato recalled that DHS "said to me that you are discriminating. I said that I am following the teachings of the Catholic Church." Jun. 19, 2018 Hr'g Tr. 55:22-25 (Amato).
On March 13, 2018, the Philadelphia Inquirer published an article titled Two Foster Agencies in Philly Won't Place Kids with LGBTQ People.
On March 27, 2018, Deputy Commissioner Ali emailed various community umbrella agencies-responsible for case management activities-to communicate that foster agencies should "refrain from making any foster care referrals to Bethany Christian Services and [CSS]," but "[i]f you have questions about a case, please contact me by phone or email." Ex. 1-E 3, ECF No. 10-12. Deputy Commissioner Ali further communicated that DHS is:
Committed to the safety and stability of children in our care and must consider the needs of the children and youth currently served by foster families licensed by these organizations. Our goal is to minimize placement disruptions, and to ensure that a child's ability to reunify or to continue an adoption process is not delayed because of placement disruption.
Ex. 1-E 3, ECF No. 10-12.
C. Doe Foster Child # 1
Plaintiffs spent some time at the evidentiary hearing exploring a situation involving a minor child identified as Doe Foster Child # 1. Plaintiffs point to the situation involving Doe Foster Child # 1 as an "example of the harm that has resulted from the City's intake closure." Pls.' Proposed Findings of Fact and Conclusions of Law 27, ECF No. 46. The circumstances surrounding Doe Foster Child # 1 are, as is often the case for children in foster care, complex. The Court notes, however, that by the time of the evidentiary hearing, DHS and CSS, working together, successfully obtained a Philadelphia Family Court order permitting Doe Foster Child # 1's removal from a different living situation and then placement with a CSS-certified foster parent. Ali Decl. ¶ 60, ECF No. 20-1. Through the concerted efforts of DHS and CSS staff, the situation involving Doe Foster Child # 1 is now resolved.
Still, Plaintiffs contend that the situation with Doe Foster Child # 1 would not have occurred but for DHS's closure of CSS's intakе of new referrals, while DHS and Philadelphia contend that Doe Foster Child # 1's unique situation was resolved in a timely manner considering the complexity of the case. As a factual matter, the situation with Doe Foster Child # 1 is unlikely to occur again given that DHS and CSS are both now fully aware that exemptions from the intake closure have been and continue to be granted consistent with the best interests of individual children. See, e.g. , Jun. 19, 2018 Hr'g Tr. 84:2-9 (Amato) (testifying that he is aware that DHS will grant exceptions in some cases for placements with Catholic Social Services when such placements are in the best interests of the child); Jun. 19, 2018 Hr'g Tr. 86:8-11 (Amato) (testifying that CSS has, in fact, sought out and received placements for children despite the intake closure when placements were in the best interests of the child).
In response to Plaintiffs' claims that CSS's intake closure has and will continue to negatively affect foster children, DHS offered evidence showing that the closure of CSS's intake of new referrals has had little or no effect on the operation of Philadelphia's foster care system. DHS Commissioner Figueroa testified that CSS's intake closure "has not resulted in a rise in children placed in congregate care."
That the effects of closing CSS's intake have been small relative to size and breadth of the Philadelphia foster care system is, unfortunate, but unsurprising given Commissioner Figueroa's explanation that:
Kids are abused every day. They are neglected every day. They end up in [DHS's] placement, in [DHS's] care, because their families can't care for them. We are incredibly fortunate that we have foster care agencies, but it's not a one to one.
Jun. 21, 2018 Hr'g Tr. 93:23-94:7 (Figueroa). The number of cases and idiosyncrasies of each child involved in each case means that the mere fact that there are empty, available foster homes does not equate to fewer children in congregate care. Figueroa explained that assuming that "availability [at any one foster agency] [will] reduce the [use of] congregate care is an over [simplification] of the complicаtion of our work." Jun. 21, 2018 Hr'g Tr. 93:23-94:7 (Figueroa). That the negative effects of closing CSS's intake have been relatively slight is also supported by the reality that, as of the evidentiary hearing date, at least three foster agencies had intake closures in place and the foster system nevertheless remained stable. See Jun. 21, 2018 Hr'g Tr. 5:14-15 (Figueroa) (testifying that "I have closed intake in other circumstances for other providers."); Jun. 21, 2018 Tr. 8:24-25-9:1 (Figueroa) (testifying that the week before, DHS also closed intake for another agency); Jun. 21, 2018 Hr'g Tr. 12:9-21 (Figueroa) (testifying that Bethany Christian Services's intake remained closed as of June 21).
E. Defendants' Preference To Continue Work With CSS And Offer Of New Contracts
DHS and Philadelphia have explicitly stated a preference for continuing their relationship with CSS, despite CSS's religious nature, so long as CSS complies with its contract responsibilities. See, e.g. , Jun. 21, 2018 Hr'g Tr. 9:18-24 (Figueroa) (indicating that DHS would prefer to continue contracting with CSS); Jun. 19, 2018 Hr'g Tr. 120:7-11 (Amato) (testifying that DHS and Philadelphia were clear that they did "not plan to agree to any further referrals to CSS ... absent assurances that CSS is prepared to adhere to contractual obligations"). Indeed, DHS and Philadelphia manifested their preference to continue working with CSS by offering CSS two different renewal services contracts. See, e.g. , Jun. 21, 2018 Hr'g Tr. 10:1-10 (Figueroa). The first contract would be a renewal on the same terms as CSS's current Services Contract. The second contract
III. STANDARD OF REVIEW
A. Temporary Restraining Order and Preliminary Injunctive Relief Factors
A preliminary injunction is "an extraordinary remedy never awarded as of right." Groupe SEB USA, Inc. v. Euro-Pro Operating LLC ,
The Third Circuit has explained that the first two factors of this analysis-likelihood of success on the merits, and irreparable harm-act as "gateway factors." Reilly v. City of Harrisburg ,
Esteemed jurists have acknowledged that the existence of complex questions of law and disputed matters of fact at the preliminary injunction phase of a case may create "doubt about the probability of [a] plaintiff's success to justify denying a preliminary injunction." Transcon. Gas Pipe Line Co. v. Permanent Easements for 2.14 Acres & Temp. Easements for 3.59 Acres in Conestoga Twp., Lancaster Cty., Pa. , No. 5:17-CV-00715,
Although there exists, in this case, a myriad of complex questions of law and a great number of disputed facts such that the Court could justifiably deny injunctive relief on these grounds alone, the Court nevertheless engages in the preliminary injunction analysis below to ensure that the reasons for the Court's decision are sufficiently articulated for the Parties.
IV. DISCUSSION AND CONCLUSIONS OF LAW
A. Factual Precedent: Faith-Based Foster Agencies In Other Jurisdictions
At the outset, the Court notes that while precise legal precedent on the issues raised in this case is absent, there exists some factual precedent. In 2006, for example, in the wake of Massachusetts's legalization of same-sex marriages, Catholic Charities in Boston shut down its foster care agency after it unsuccessfully sought permission from Massachusetts to withhold its services from legally married same-sex couples.
In 2010, Cathоlic Charities in Washington, DC, like Catholic Charities in Boston, ended its foster care program in response to Washington, DC's legislation to legalize same-sex marriage.
In 2011, Catholic Charities in Illinois sued, among others, the State of Illinois after the State indicated that it would not renew its foster care contract with Catholic Charities because Catholic Charities' "failure to provide services to unmarried cohabiting couples was in direct violation of" state law. Summary Judgment Order 2, Catholic Charities of the Diocese of Springfield v. Madigan , No. 2011-MR-254,
In 2006, in contrast to the decisions by Catholic Charities in Boston, Washington, DC, and Illinois to end its foster care services, Catholic Charities in San Francisco chose to end its full service adoption agency to avoid providing services to same sex couples, but otherwise planned to "provide staff and financial resources to connect needy children to adoptive parents," and formally collaborate with other adoption agencies who can provide full services to all-comers without violating San Francisco's anti-discrimination efforts.
Against this backdrop, the Court turns to the Parties' legal arguments.
B. Services Contract Requires Contractors To Provide Services Consistent With Fair Practices Ordinance
1. The Unambiguous Terms Of The Services Contract Evinces The Parties' Intent That The Fair Practices Ordinance Apply To CSS's Services
As a threshold matter, the Parties disagree on whether the Services Contract requires CSS to provide its services to all-comers in accordance with the Fair Practices Ordinance because such services may or may not constitute a "public accommodation." While briefing on this issue is scant, the Parties expended significant time arguing this issue at the evidentiary hearing. See, e.g. , Jun. 18, 2018 Hr'g Tr. 9:17-12:14 (Plaintiffs' Opening Statement); see also Pls.' Proposed Findings of Fact and Conclusions of Law ¶¶ 61-65. In view of the plain terms of CSS's covenant to be bound by the Fair Practices Ordinance as set forth in the Services Contract, and in view of the expansive, but plain, definition of "public accommodations" under the Fair Practices Ordinance, the Court concludes that the Fair Practices Ordinance applies to CSS's provision of services under the Services Contract.
It is well-established that:
[c]ontract interpretation is a question of law that requires the court to ascertain and give effect to the intent of the contracting parties as embodied in the written agreement. Courts assume that a contract's language is chosen carefully and that the parties are mindful of the meaning of the language used. When a writing is clear and unequivocal, its meaning must be determined by its contents alone.
Old Summit Mfg., LLC v. Pennsummit Tubular, LLC (In re Old Summit Mfg., LLC) ,
Having concluded that the Services Contract evinces the Parties' intent that the Fair Practices Ordinance apply to CSS's services rendered under the Services Contract, the Court turns to the issue of whether the Fair Practices Ordinance would requirе CSS to provide foster parent certifications and home visits for prospective parents in accordance with the all-comers/nondiscrimination provisions of the Fair Practices Ordinance. The resolution of this issue turns on two questions: (1) whether CSS's scope of services includes the provision of certification and home visits in connection with certification in the first instance, and (2) if so, whether those services fall within the meaning of a public accommodation under the Fair Practices Ordinance.
2. CSS's Scope Of Services Requires CSS To Recruit, Screen, Train, And Certify Resource Caregivers
Here, as with all questions of parties' obligations under a contract, the Court must look to the intent of the parties as embodied in the plain and unambiguous terms of the contract. In agreeing to perform the Scope of Services under the Services Contract, CSS agreed to "recruit, screen, train, and provide certified resource care homes." Decl. of James Amato Ex. A, ECF p. 28 of 52, ECF No. 13-3. Indeed, CSS's obligation to recruit, screen, train, and certify resource caregivers is emphasized elsewhere in the Scope of Services. Decl. of James Amato Ex. A, ECF p. 28-29 of 52, ECF No. 13-3 (providing that "resource caregivers are screened, trained, and certified by [CSS]"); see also Decl. of James Amato Ex. A, ECF p. 27 of 52 n.1, ECF No. 13-3 (providing under the "Statement of Purpose" that "Provider Staff is responsible for recruiting and certifying foster and kinship homes"). The Court concludes that CSS's certification of prospective foster parents and CSS's provision of home studies "to assure [that prospective foster parents] are qualified and well prepared for the responsibility of foster care"
Having determined that certification and home studies are services that CSS was hired to provide under the Services Contract, the Court turns to whether these services constitute "public accommodations" under the Fair Practices Ordinance such that CSS's provision of these services must be rendered in accordance with the all-comers, anti-discrimination provision of the Fair Practices Ordinance.
3. The Services That CSS Provides Are Public Accommodations Within The Meaning Of The Fair Practices Ordinance
In interpreting a municipal ordinance, a court must employ the same analysis that the court employs when interpreting
The Fair Practices Ordinance provides an expansive, but plain definition of the term "public accommodation." Under the Fair Practices Ordinance, a public accommodation is:
Any [ ] provider, whether licensed or not, which solicits or accepts patronage or trade of the public or whose... services, facilities... are extended, offered [ ] or otherwise made available to the public; including all ... services provided by any public agency or authority; any agency, authority or other instrumentality of ... the City, its departments, boards and commissions.
Philadelphia Fair Practices Ordinance § 9-1102 (Definitions) at 4, Chapter 9-1100 of the Philadelphia Code.
In this case, CSS's provision of services meets the definition of public accommodations and, therefore, CSS must provide its services in accordance with the Fair Practices Ordinance as incorporated by Article XV, § 15.1 of the Services Contract. CSS is a "licensed" "provider" under the Services Contract. CSS publicly solicits prospective foster parents and advertises to attract new foster parents.
C. Likelihood of Success on the Merits
Having determined that the terms of the Services Contract, including the all-comers, nondiscrimination provisions of the Fair Practices Ordinance incorporated into the Services Contract under Article XV, § 15.1, apply to CSS's provision of services, the Court turns to CSS's argument that it nevertheless need not comply with these all-comers, nondiscrimination provisions because compliance would violate CSS's rights under the Free Exercise and Establishment Clauses of the First Amendment, the Pennsylvania Religious Freedom Act ("RFPA"), and the Free Speech Clause of the First Amendment.
i. The Services Contract And Fair Practices Ordinance Incorporated In The Services Contract Is A Neutral Law Of General Applicability Subject To Rational Basis Review
The First Amendment to the United States Constitution provides that "Congress shall make no law ... prohibiting the free exercise [of religion]." Tenafly Eruv Ass'n, Inc. v. Borough of Tenafly ,
When a challenged law "is 'neutral' and 'generally applicable,' and burdens religious conduct only incidentally, the Free Exercise Clause offers no protection."
By contrast, "if a law is not neutral ... or is not generally applicable ... strict scrutiny applies and the burden on the religious conduct violates the Free Exercise Clause unless it is narrowly tailored to advance a compelling government interest." Tenafly Eruv Ass'n, Inc. ,
Even if a law is neutral and generally applicable on its face, if "government officials exercise discretion in applying a facially neutral law, so that whether they enforce the law depends on their evaluation of the reasons underlying a violator's conduct, they contravene the neutrality requirement if they exempt some secularly motivated conduct but not comparable religiously motivated conduct." Tenafly Eruv Ass'n, Inc. ,
A group of law students at a public law school formed a chapter of the Christian Legal Society ("CLS") that required its members to sign a "Statement of Faith" and adhere to bylaws that would "exclude from affiliation anyone who engages in 'unrepentant homosexual conduct.' "
In upholding the law school's conditioning of RSO status and attending benefits on CLS's acceptance of the nondiscrimination policy, the Supreme Court reasoned that the law school's policy was, in essence, a neutral "all comers" policy and that the law school, "caught in the crossfire between a group's desire to exclude and students' demand for equal access, may reasonably draw a line in the sand permitting all organizations to express what they wish but no group to discriminate in membership." Id. at 694,
[t]he question here ... is not whether [the law school] could , consistent with the Constitution, provide religious groups dispensation from the all-comers policy by permitting them to restrict membеrship to those who share their [sincerely held religious belief]. It is instead whether [the law school] must grant that exemption. This Court's decision in Employment Div., Dept.of Human Resources of Ore. v. Smith , ... unequivocally answers no to that latter question.
Martinez ,
In Teen Ranch , a faith-based residential home for troubled youth, Teen Ranch, sued a state agency, charged with placing troubled youth in protective care, after the state agency issued a moratorium against further placements of children with Teen Ranch due to Teen Ranch's policies and practices that violated laws prohibiting the use of state funds for sectarian activities.
where the [Supreme] Court reviewed a state scholarship program that excluded any student who was pursuing a degree in devotional theology ... [a]lthough the law was not facially neutral with respect to religion, the [Supreme] Court held that it did not violate the Free Exercise Clause [because the law] 'imposes neither criminal nor civil sanctions on any type of religious service or rite.... And it does not require students to choose between their religious beliefs and receiving a government benefit. The State has merely chosen not to fund a distinct category of instruction.
Teen Ranch ,
In this case, the Services Contract and the Fair Practices Ordinance incorporated into the Services Contract is, on its face, a neutral law of general applicability under Smith , therefore, the Court applies the rational basis test to determine the
First the Court concludes that the Services Contract and Fair Practices Ordinance are neutral with respect to religion because there is no evidence that the Services Contract or Fair Practices Ordinance were drafted or enacted with the object "to infringe upon or restrict practices because of their religious motivation." Lighthouse Inst. for Evangelism, Inc. ,
The legislative history and intent of the Fair Practices Ordinance similarly supports a finding of neutrality. Philadelphia City Council first enacted the Fair Practices Ordinance in 1963 long before the present dispute between the Parties. Philadelphia City Council amended the Fair Practices Ordinance in 1982, thirty-six years before the events relevant to this case, to broaden the scope of its inclusion policy to protect Philadelphians on the basis of, among other things, sexual orientation. Indeed, the Legislative Findings section of the Fair Practices Ordinance explained the reasons for its enactment. The Fair Practices Ordinance provides that Philadelphia's population:
Consists of people of every race, ethnicity, color, religion, national origin, sex, sexual orientation, gender identity, ancestry, age, disability, marital status, and familial status.... [and] [d]iscrimination in places of public accommodation causes embarrassment and inconvenience to citizens and visitors of the City, creates breaches of the peace, and is otherwise detrimental to the welfare and economic growth of the City.
§ 9-1101. The history and text of the Fair Practices Ordinance provide no basis to conclude that the Fair Practices Ordinance has as its object the infringement of religious rights. Accordingly, the Fair Practices Ordinance, as incorporated by the Parties into the Services Contract, is neutral.
The Services Contract and the Fair Practices Ordinance are also generally applicable. In this case, the Services Contract was, in fact, applied generally. The general applicability of the Services Contract and Fair Practices Ordinance is not only evident from the text of the Services Contract, but also from the actions DHS and Philadelphia took in this case. First, the Services Contract and Fair Practices Ordinance do not "proscribe particular conduct only or primarily when religiously motivated;" they proscribe only CSS's ability to turn away qualified Philadelphians on the basis of particular character traits without regard to secular or religious reasons. Lighthouse Inst. for Evangelism, Inc. ,
As applied in this case, the Services Contract and Fair Practices Ordinance were, in fact, implemented in a general manner. Not only has DHS confirmed that it would not permit any foster agency under contract, faith-based or not, to turn away potential foster parents for the foster parents' characteristics under the Services Contract and Fair Practices Ordinance, DHS also closed intake of new referrals by CSS and Bethany Christian Services for the same reason. This evidence supports the conclusion that DHS and Philadelphia are not applying the Services Contract or the Fair Practices Ordinance to target particular religious denominations for any religious reason.
Having concluded that the Services Contract and Fair Practices Ordinance are apparently facially neutral and generally applicable and appear to have been neutrally and generally applied in this case, the Court concludes that Defendants' enforcement of the Services Contract and Fair Practices Ordinance is rationally related to a number of legitimate government objectives. While the standard for rational basis review is well known, it bears repeating:
Under rational basis review, '[a] statute is presumed constitutional, and the burden is on the one attacking the legislative arrangement to negative every conceivable basis which might support it, whether or not that basis has a foundation in the record.' .... The regulation must be reasonable and not arbitrary and it must bear 'a rational relationship to a [permissible] state objective.' "
Lighthouse Inst. for Evangelism, Inc. ,
Here, Defendants have at least six permissible governmental objectives that are furthered by seeking CSS's compliance with the Services Contract. First, DHS and Philadelphia have a legitimate interest in ensuring that when contractors agree to terms in a government contract, the contractors adhere to those terms. Second, DHS and Philadelphia have a legitimate interest in ensuring that when its contractors
That Defendants have legitimate objectives in this case is clearer still in view of the Supreme Court's decision in Martinez ,
In this case, as in Teen Ranch , context matters. In Teen Ranch , the district court aptly drew a distinction between cases involving essential government benefits such as unemployment compensation or the ability to hold office, and "a state contract for youth residential services, which is not a public benefit."
ii. No Evidence Of Targeting To Trigger Strict Scrutiny
Although the Court concludes that rational basis review applies in this case, the Court addresses Plaintiffs' argument that strict scrutiny review should apply instead.
At the outset, the Court acknowledges the Parties' varying citations to the recent Supreme Court case, Masterpiece Cakeshop, Ltd. v. Colorado Civil Rights Comm'n , --- U.S. ----,
In an attempt to show that Defendants' actions are subject to strict scrutiny despite the facial neutrality and general applicability of the Services Contract provisions at issue, and DHS's and Philadelphia's expressed preference to continue contracting with CSS, Plaintiffs allege that Defendants have targeted CSS "purely based on its religious beliefs." Pls.' Br. 17, ECF No. 13-2. In support of their claim of targeting, Plaintiffs point to (1) anti-Archdiocese of Philadelphia and anti-Archbishop of Philadelphia comments made by the Mayor of Philadelphia to show that DHS and Philadelphia intentionally sought to penalize CSS for its religious beliefs and exercise, and (2) the purported selective, discretionary enforcement of "laws or legal instruments in a way that burdens conduct for religious reasons but not seculаr reasons."
First, contrary to Plaintiffs' contentions, the Mayor's comments do not support the conclusion that DHS targeted CSS for its Catholic beliefs because (a) there was insufficient evidence at the preliminary injunction phase to show that the Mayor had any influence in DHS's decisions in this case, thereby rendering the comments irrelevant to these proceedings, and (b) even comments the Mayor made relating to Catholicism do not demonstrate targeting in light of the fact that DHS also closed Bethany Christian Services's referrals intake, a non-Catholic agency, that similarly would not comply with its obligation to serve all-comers under its foster agency contract.
Plaintiffs cite four comments involving the Mayor of Philadelphia that purportedly show that DHS closed CSS's intake due to CSS's Catholic beliefs.
Plaintiffs rely too heavily on these four citations to draw a sweeping conclusion that CSS has suffered impermissible hostility at the hands of the Mayor. The evidence submitted at the three-day evidentiary hearing is insufficient to draw the conclusion Plaintiffs would have the Court draw. There was no evidence to show that the Mayor directed DHS to close CSS's intake of new referrals or to insist that CSS comply with its contractual obligation to serve all Philadelphians. See Jun. 19, 2018 Hr'g Tr. 166:6-21 (Figueroа) (testifying that Commissioner Figueroa herself "decided that it was in the best interest [of children] to close intake, so that [Figueroa] could look more deeply into" CSS's and Bethany Christian Services's policies); Figueroa Decl. ¶ 32, ECF No. 20-6 (same); Jun. 18, 2018 Hr'g Tr. 96:2-3 (Ali) (testifying that, to Ali's knowledge, Commissioner Figueroa herself decided to close CSS's intake of new referrals); Jun. 21, 2018 Hr'g Tr. 108:11-13, 108:18-20 (Figueroa) (testifying that Commissioner Figueroa did not know the Mayor's views on CSS when Figueroa met with CSS, nor did Figueroa "discuss cutting off intake with the Mayor's office").
That DHS made its own decision to close intake is supported by the fact that DHS has closed intake for other foster care agencies in the past for a number of reasons and, thus, intake closure is a relatively unremarkable DHS administrative action that may be taken to address a number of agency concerns. See, e.g. , Jun. 21, 2018 Hr'g Tr. 5:14-15 (Figueroa) (testifying that "I have closed intake in other circumstances for other providers."); Jun. 21, 2018 Tr. 8:24-25-9:1 (Figueroa) (testifying that the week before, DHS also closed intake for another agency). In short, there is insufficient evidence in the record to show that the Mayor was involved in DHS's decision to close CSS's and Bethany Christian Services's intake of new referrals. Therefore, the Mayor's comments are irrelevant to this case and cannot support Plaintiffs' claim of religious hostility and intentional targeting.
Each of Plaintiffs' four citations purportedly showing DHS's intentional targeting of CSS on religious grounds cannot support Plaintiffs' conclusion for a number of other reasons. Plaintiffs' first two citations are three and two years old, respectively. The events that precipitated this case occurred in March 2018. These first two citations, as a matter of timeliness, if not substance, are irrelevant. Plaintiffs' third citation to the Mayor's comment that "we cannot use taxpayer dollars to fund organizations that discriminate against people because of their sexual orientation or because of their same-sex marriage status.... It's just not right" is, by its plain terms, not about religious views, but about whether publicly funded service providers may refuse to serve all Philadelphians, including those that are in same-sex marriages. Plaintiffs' fourth citation, to a May 7, 2018 letter in which the Philadelphia Commission on Human Relations indicated that the Commission would undertake an investigation, in part, at the request of the Mayor, was sent after DHS made an independent decision to close CSS and Bethany Christian Services's intake. The letter, therefore, cannot support a сonclusion that the Mayor was involved in DHS's decision.
Plaintiffs also have pointed to Commissioner Figueroa's statement at the May 15 meeting between DHS officers and CSS management that "it would be great if we listened to the teachings and the words of our current Pope Francis" as another ground on which to rest its targeting and preference allegations. Jun. 21, 2018 Hr'g
In an another attempt to show that DHS has targeted CSS on religious grounds, Plaintiffs argue that DHS has granted secular exemptions to the Services Contract's fair practices provisions, but now refuse a religious exemption to CSS. Plaintiffs, however, misapprehend how religious targeting may be proven through the government's provision of "secular exemptions." On this issue, the Third Circuit's decision in the case Fraternal Order of Police Newark Lodge No. 12 v. City of Newark , provides the framework for determining whether the government is impermissibly providing secular exemptions to a regulation, and not providing comparable religious exemptions to the same regulation in violation of the First Amendment.
In Fraternal Order of Police , the Third Circuit considered a police department regulation that prohibited its officers from wearing beards to maintain uniformity among the officers.
Here, the policy at issue is the fair practice provisions of CSS's Services Contract, that is the all-comers, nondiscrimination provisions. The question is whether DHS grants exemptions to the fair practice provisions of foster agency contracts for secular reasons, but denies CSS an exemption for religious reasons thereby evidencing an impermissible governmental value judgment that secular motivations for violating fair practice provisions are more important than religious motivations. The answer to this question is no. There is no evidence in the record to show that DHS has granted any secular exemption to the requirement that its foster care agencies provide their services to all comers. Plaintiffs have not alleged, nor have Plaintiffs presented, any evidence that DHS has granted exemptions to any secular agency to permit a secular agency to refuse its services to all comers in contravention of
The purported secular exemptions to which Plaintiffs point to show religious targeting are not, in fact, exemptions to the fair practices requirements and, as such, cannot be considered evidence of targeting. CSS complains that DHS has permitted "referrals of families for a variety of secular reasons, including proximity, expertise in caring for medical needs, expertise in addressing behavioral needs, ability to find foster placements for pregnant youth, expertise working in a 'kin care' program, and other specialties or areas of focus." Pls.' Br. 21, ECF No. 13-2. These "secular reasons," however, are not exemptions from fair practices requirements. DHS permits agencies to "refer" prospective foster parents to specialty agencies equipped to handle certain special needs, but nowhere is there evidence in the record that DHS permits agencies to refuse to provide their services to prospective fоster parents in violation of the fair practices policies contained in government contracts or local law. While CSS has represented that it would euphemistically "refer" same-sex couples to other foster agencies willing to serve same-sex couples, CSS's "referral" to another agency would nevertheless amount to CSS's refusal to serve that same-sex couple.
As there is insufficient evidence to support the conclusion that DHS has explicitly targeted CSS for religious reasons, strict scrutiny is inapplicable in this case.
2. Establishment Clause Claim
Plaintiffs also assert a claim under the Establishment Clause based on Defendants' alleged "engag[ment] in denominational preference and targeting." Pls.' Br. 24, ECF No. 10-2. The First Amendment to the U.S. Constitution provides that "there should be 'no law respecting an establishment of religion.' " Lemon v. Kurtzman ,
In support of Plaintiffs' Establishment Clause claim, Plaintiffs cite to the same purported evidence of religious targeting that they cited in connection with their free exercise claim, that is, evidence of the Mayor's alleged bias against the Archdiocese of Philadelphia and the Archbishop of Philadelphia. Plaintiffs argue that the Mayor's comments in tandem with DHS's actions "demonstrate an intent to target Catholic Social Services based upon disagreement with [CSS's] religious beliefs." Pls.' Br. 25, ECF No. 10-2. As discussed in connection with Plaintiffs' religious targeting argument, above, the evidence does not support Plaintiffs' sweeping conclusion.
In pursuing its Establishment Clause claim, CSS glosses over the fact that it has not been singled out for its policy of refusing to serve all qualified Philadelphians. DHS closed Bethany Christian Services's intake of new referrals for the same reason
Plaintiffs have not demonstrated entitlement to relief under the Establishment Clause.
3. Pennsylvania Religious Freedom Act Claim
Plaintiffs' next lodge a statutory claim under the Pennsylvania Religious Freedom Act ("RFPA"). 71 Pa. Cons. Stat. Ann. §§ 2401 - 2407. Before turning to the substance of Plaintiffs' claim, the Court emphasizes that Plaintiffs' claim is a state law claim. Under certain circumstances a district court may abstain from ruling on a state law issue, such as the issue in this case, in favor of allowing the state courts an opportunity to address the issue. Indeed, in Combs v. Homer-Center School Dist. , the Third Circuit vacated a district court order awarding a defendant summary judgment on a RFPA claim and ordered the district court to remand the matter to the appropriate state court for adjudication.
At the preliminary injunction stage, the Third Circuit has advised that considerations of the novelty and potential complexity of a state law question "have very little weight." New Jersey-Philadelphia Presbytery of the Bible Presbyterian Church v. New Jersey State Bd. of Higher Educ. ,
Section 2401 of RFPA provides:
(a) General rule. Except as provided in subsection (b), an agency shall not substantially burden a person's free exercise of religion, including any burden which results from a rule of general applicability.
(b) Exceptions. An agency may substantially burden a person's free exercise of religion if the agency proves, by a preponderance of theevidence, that the burden is all of the following:
(1) In furtherance of a compelling interest of the agency.
(2) The least restrictive means of furthering the compelling interest.
71 Pa. Cons. Stat. Ann. § 2404 (emphasis added).
While RFPA would appear, on its face, to protect a wide range of religious activity, the Third Circuit has noted that "[s]ignificantly, not all burdens on the exercise of religion trigger the RFPA's heightened scrutiny." Brown v. City of Pittsburgh ,
Under RFPA, a law substantially burdens a person's fundamental religious exercise if it:
(1) Significantly constrains or inhibits conduct or expression mandated by a person's sincerely held religious beliefs.
(2) Significantly curtails a person's ability to express adherence to the person's religious faith.
(3) Denies a person a reasonable opportunity to engage in activities which are fundamental to the person's religion.
(4) Compels conduct or expression which violates a specific tenet of a person's religious faith.
71 Pa. Cons. Stat. Ann. § 2403. In determining whether the government substantially burdens a person's free exercise of religion under RFPA, a state law, the Court looks to the way in which the state law has been interpreted and applied by state courts.
In Ridley Park Unitеd Methodist Church v. Zoning Hearing Bd. Ridley Park ,
nothing here impinges on the religious activities of the Church. While it aided in carrying out the Church's religious mission, the daycare is not a fundamental religious activity of a church. For example, ministering to the sick can flow from a religious mission, but it is not a fundamental religious activity of a church because a hospital may be built to satisfy that mission.
In Staple v. Dep't of Corrections , the Commonwealth Court considered a situation in which the Pennsylvania Department of Corrections confiscated religious texts from an inmate.
In Commonwealth v. Parente , the Commonwealth Court addressed a defendant's assertion that a city noise control ordinance prohibiting the defendant's use of a hand-held microphone with speakers to "exercise his religious beliefs" in accordance with "the dictates of his conscience and serv[ing] God by peacefully preaсhing and counseling people," violated his rights under RFPA.
These state court decisions interpreting RFPA highlight what the Third Circuit has noted in other cases: the analytical framework established by RFPA "appears to create some tension between state and federal law." Combs ,
In this case, Plaintiffs have articulated their fundamental religious exercise as "providing foster care to Philadelphia children."
Assuming that providing foster care to children constitutes a fundamental religious exercise, the next question under RFPA analysis is whether holding CSS to its obligations under the Services Contract, in particular its obligation to provide its services to all-comers in accordance with the Fair Practices Ordinance, substantially burdens CSS's provision of foster care to children. The Court concludes that CSS's provision of foster care to children is not substantially burdened in this case because CSS is not reasonably likely to show by clear and convincing evidence that its fundamental religious exercise has been substantially burdened under any of the four definitions of "substantial burden" provided undеr RFPA.
Resolution of the issue of "substantial burden" requires the Court to focus on what precisely CSS has been asked to do in this case and whether doing it necessarily results in a conflict with CSS's religious beliefs. CSS has been asked, and indeed CSS agreed when it entered into the Services Contract, to serve all persons who seek CSS's services consistent with the all-comers provisions of the Fair Practice Ordinance. Compliance with the all-comers provisions would, as discussed above, require CSS to provide certification services to prospective parents regardless of, among other things, religion, race, marital
CSS contends that the provision of certification services for same-sex couples would require CSS to express its religious approval of same-sex relationships in contravention of Catholic teaching about marriage. This is not the case. To illustrate this point, if, for example, CSS were to certify a couple where one spouse is previously divorced, CSS's certification would not suggest that CSS approved of divorce as a religious matter. In short, CSS was hired to provide a scope of services to the citizens of Philadelphia that is narrower than CSS contends.
The Services Contract requires CSS to "recruit, screen, train, and provide certified resource care homes" consistent with the all-comers provisions of the Fair Practices Ordinance Decl. of James Amato Ex. A, ECF p. 28 of 52, ECF No. 13-3. The Services Contract does not require CSS to do anything in connection with prospective foster parents but certify prospective foster parents as meeting state guidelines for foster care. CSS is imbuing its сertifications with meaning that is not required or compelled by the Services Contract. The Services Contract does not require CSS to express its religious approval or disapproval of persons seeking out its services. The Services Contract does not require CSS to do or say anything else in connection with CSS's religious views.
With this understanding in mind, the Court concludes that DHS has not and is not constraining Plaintiffs' ability to engage in the provision of foster care to children by imposing on CSS a contractual condition that would require CSS to violate its religious beliefs or curtail CSS's ability to express its religious beliefs. In essence, if CSS provides its services consistent with the minimal requirements of the all-comers provisions of the Fair Practices Ordinance, then CSS may continue to provide foster care to children. This does not constitute a substantial burden on CSS's religious exercise of providing foster care to children. As to the individual Plaintiffs, as discussed in detail below and in connection with the irreparable harm prong, the individuals are not constrained by Defendants' actions in connection with CSS in their fostering of children because the individual Plaintiffs are, as they always have been, entitled to be foster parents with any of the thirty foster care agencies with whom DHS has contracted.
4. Free Speech Claims
Plaintiffs allege two claims under the Free Speech Clause of the First Amendment. First, Plaintiffs allege that the services CSS provides under the Services Contract relating to certification of prospective foster parents are services for which CSS is not paid, therefore, by requiring CSS to provide certifications DHS is compelling CSS to engage in unpaid for speech. Second, Plaintiffs contend that DHS and Philadelphia retaliated against CSS for CSS's comments published in the March 13 Philadelphia Inquirer article in violation of the Free Speech Clause. The Court rejects both claims. First, in hiring CSS to perform services under the Services Contract, DHS and Philadelphia did not seek to create a forum for private speech nor did they seek to promote speech at all. Rather, DHS contracted for specific services relating to DHS's responsibility of providing foster care services to the citizens of Philadelphia, including certification services and home visits for prospective
i. Compelled Speech
In resolving Plaintiffs' claim that DHS and Philadelphia are impermissibly conditioning CSS's contract on unconstitutionally compelled speech, the Court begins by identifying the purpose of the contract because the purpose of the contract is the springboard for analysis.
The U.S. Supreme Court's decision in Legal Services Corp. v. Velazquez advised courts to look to the purpose of a government program when analyzing whether a government condition to participation in the program is constitutional under the First Amendment.
As the Legal Services Corporation Act's purpose was to facilitate private speech, and as the speech in which legal services corporation attorneys were engaged was not governmental speech, the Supreme Court held that the law's funding condition was unconstitutional. In so holding, the Supreme Court, however, also acknowledged that "[w]hen the government disburses public funds to private entities to convey a governmental message, it may take legitimate and appropriate steps to ensure that its message is neither garbled nor distorted by the grantee." Legal Servs. Corp. ,
In this case, DHS's purpose in entering into the Services Contract with CSS and its other foster care agencies is for CSS and the other twenty-nine foster care agencies to provide foster care services. The Services Contract is not intended here, in contrast to the Legal Services Corporation Act in Legal Servs. Corp. , to crеate a forum for private speech or to facilitate private speech. CSS and its sister agencies were hired to perform governmental
As CSS's speech, to the extent any is required under the Services Contract, constitutes governmental speech, DHS is permitted to "take legitimate and appropriate steps to ensure that its message," that foster care services in Philadelphia are provided to all Philadelphians consistent with the all-comers provision of the Fair Practices Ordinance, was and is "neither garbled nor distorted by" CSS. Legal Servs. Corp. ,
Plaintiffs rely on Cradle of Liberty Council, Inc. v. City of Philadelphia , in support of their argument that Defendants have impermissibly conditioned CSS's public contract on compelled speech.
The critical difference between Cradle of Liberty and this case is that in Cradle of Liberty , the City attempted to use a lease agreement to change a tenant's policy that was unrelated to the lease. See
ii. Retaliation
CSS concedes that "[a]s a contractor, Catholic Social Services is treated as 'akin to a government employee' addressing matters of 'public concern.' " Pls.' Br. 26, ECF No. 13-2. For a public employee, to prevail on a retaliation claim, the employee must show that "(1) his speech is protected by the First Amendment and (2) the speech was a substantial or motivating factor in the alleged retaliatory action, which, if both are proved, shifts the burden to the employer to prove that (3) the same action would have been taken even if the speech had not occurred." Munroe v. Central Bucks Sch. Dist. ,
Plaintiffs' retaliation claim fails on elements two and three. There is no evidence that it was CSS's viewpoint, as opposed to CSS's verbal and written confirmation that its policies directly conflicted with the Services Contract, that motivated DHS to close CSS's intake of new referrals. Even if CSS's engagement in protected activity, namely CSS's commenting to the Philadelphia Inquirer about CSS's policies in connection with a public services contract, was a substantial or motivating factor for DHS's alleged retaliation, the Court concludes that DHS would likely prevail in establishing that it would have taken the same action had CSS nоt spoken with the Philadelphia Inquirer about its policies.
For purposes of this analysis, the Court assumes that CSS's statements to the Philadelphia Inquirer and the publication of those statements constitute constitutionally-protected activity. Assuming that CSS has engaged in constitutionally-protected activity, the next analytical step is determining whether CSS's protected activity was a substantial or motivating factor in the alleged retaliatory action. While CSS would have the Court conclude that the evidence in the record shows that DHS closed CSS's intake of new referrals because of CSS's viewpoint as communicated to the Philadelphia Inquirer , in fact, the evidence shows that DHS closed CSS's intake of new referrals because CSS confirmed that its policies violate CSS's contractual obligations under the Services Contract. On this issue, the Eleventh Circuit's decision in Keeton v. Anderson-Wiley is instructive.
In Keeton , the Eleventh Circuit confronted a situation in which the plaintiff, a graduate student in the Counselor Education Program at Augusta State University, sued the University for First Amendment violations after the faculty asked the plaintiff to complete a remediation plan before she could participate in the University's clinical practicum.
In concluding that the plaintiff's free speech rights had not been violated, the Eleventh Circuit focused on the evidence of why the University asked the plaintiff to engage in a remediation plan and why the University ultimately withdrew the plaintiff from the counseling practicum.
the evidence shows that, in requiring Keeton to learn about and interact with the GLBTQ population, to read articles in counseling or psychological journals about counseling the GLBTQ population, and to become familiar with the ALGBTIC Competencies for Counseling Gays and Transgender clients, ASU's officials sought to teach her how to effectively counsel GLBTQ clients in accordance with the ACA Code of Ethics.
Keeton ,
the record shows that ASU's officials imposed the remediation plan, not because she expressed her personal religious views regarding homosexuality, but because she was unwilling to comply with the ACA Code of Ethics. That this unwillingness to abide by ASU's curriculum and her chosen profession's ethical standards initially became apparent through her writings and class discussions does not cloak it in First Amendment protection.
Here, the evidence shows that DHS's closure of CSS's intake of new referrals was not based on CSS's viewpoint as expressed in the Philadelphia Inquirer article, but instead, based on CSS's admission that it would not comply with the all-comers provisions of the Services Contract. CSS misperceives the closure of its intake as having to do with its viewpoint in the same way the plaintiff in Keeton misperceived "her viewpoint-based objections to [the university's] officials' actions with viewpoint discrimination."
Testimony established DHS's reason for closing intake. Commissioner Figueroa testified that she "decided that it was in the best interest [of children] to close intake,
Even if CSS could establish that its engagement in protected activity was a substantial or motivating factor for DHS's decision to close intake and not offer CSS a new services contract, DHS would likely meet its burden under the third prong of the retaliation claim that it would have taken such action in the absence of CSS's protected activity. In addition to testimony that DHS would not permit any agency to refuse service to qualified Philadelphians protected by the all-comers provisions of the Fair Practices Ordinance, perhaps the strongest evidence that DHS would have taken the same course of action even in the absence of CSS's purported protected activity is the fact that DHS, indeed, took the same course of action in connection with Bethany Christian Services-who also made comments to the Philadelphia Inquirer , that has similar policies in contravention of its services contract. DHS also called all other faith-based agencies and a non faith-based agency to examine their policies on same-sex couples.
D. Irreparable Harm
Plaintiffs have identified five purported irreparable harms that will result absent injunctive relief: (1) violations of Plaintiffs' religious rights will result in irreparable harm as a matter of law, (2) violations of Plaintiffs' free speech right will result in irreparable harm as a matter of law, (3) without a new government services contract CSS will be forced to lay off staff and possibly shut down its operations entirely, (4) with the closure of CSS, the individual Plaintiffs and other CSS-certified foster parents will not be able to use their skills to foster children, and (5) the closure of CSS will result in a rise in the number of children in congregate care or DHS's overnight foster care room. The Court disagrees because these alleged harms are either not present on these facts or are otherwise not irreрarable for purposes of preliminary injunction analysis.
The first two harms to which Plaintiffs point are harms that would occur only if Plaintiffs First Amendment rights have been violated. As the Court explained at length above, Plaintiffs are unlikely to prevail on the merits of their First Amendment claims. Accordingly, while a loss of First Amendment freedom may be considered irreparable
In Air Freight , the Third Circuit reversed a district court injunction prohibiting the respondent from terminating a pivotal contract with petitioner.
As to CSS's claim it will be forced to lay off staff and close its operation unless the Court issues an injunction, the Court finds these harms are economic harms that are insufficient to meet the irreparable harm standard for a preliminary injunction. Evidence shows that CSS is compensated by DHS under the Services Contract and that CSS is paid on a per diem basis. See Decl. of James Amato Ex. A, ECF p. 15 of 52, ECF No. 13-3; Jun. 21, 2018 Hr'g Tr. 11:4-7 (Figuеroa) (testifying that many contractors are paid on a per diem basis); Jun. 21, 2018 Hr'g Tr. 139:20-24 (same) (Figueroa); Jun. 19, 2018 Hr'g Tr. 41:5-6 (Amato) (testifying that CSS "subsidized [foster care] services to the tune of $3.8 million"). Given the Parties' familiarity of their financial relationship, the Court concludes that CSS's possible harm in the form of lost revenue under the Services Contract can be quantified and may be fully compensable through money damages.
Plaintiffs have also not established the imminence of their financial collapse in the absence of injunctive relief because CSS has testified that it also has foster care contracts with Montgomery County, PA and Bucks County, PA. Jun. 19, 2018 Hr'g Tr. 89:3-9 (Amato). There are also interim financial arrangements that are available to CSS. DHS Commissioner Figueroa explained that in the past, when foster care agencies have shut down, DHS, in fact, has provided temporary funding to those foster care agencies to ensure smooth transitions of their staff, foster parents, and the children. Jun. 21, 2018 Hr'g Tr. 10:23-11:9 (Figueroa). Accordingly, the economic harms to which Plaintiffs point in support of injunctive relief are insufficient to meet the exacting standard of irreparable harm.
While transferring to another agency may be difficult, uncertain, and emotionally challenging, transferring to other agencies is neither impossible nor unlikely to be successful. Decl. Kimberly Ali ¶¶ 27-29, ECF No. 20-1 (explaining the process by which resource parents transfer from one agency to another); Decl. Kimberly Ali ¶¶ 34-36, ECF No. 20-1 (describing how Lutheran Children and Family Service of Eastern Pennsylvania's voluntary closure was handled and explaining that there were no significant issues in transferring families to other agencies). The Third Circuit, although acknowledging how individuals can suffer mental anguish in connection with litigation, has held that emotional difficulty alone cannot justify the imposition of an injunction.
In Adams , the Third Circuit concluded that even where the denial of injunctive relief would force patients to switch doctors and medical providers and that such a switching of doctors would prove "emotionally draining" and could present some medical risk, such harms were not the type of irreparable harm "contemplated by the preliminary injunction standard."
Finally, Plaintiffs argue that in the event CSS closes its operations, the number of children in congregate care living situations will increase or the number of children in DHS's overnight foster care room will increase. As provided above, in connection with the factual background of this case, DHS has shown that the closure of CSS's intake of new referrals has had little or no effect on the operation of Philadelphia's foster care system. DHS Commissioner Figueroa testified that CSS's intake closure "has not resulted in a rise in children placed in congregate care." Jun. 21, 2018 Hr'g Tr. 86:4-87:9 (Figueroa). Further Commissioner Figueroa testified that CSS's intake closure "has not resulted in a rise in children staying in DHS's childcare room." Jun. 21, 2018 Hr'g Tr. 86:4-87:9 (Figueroa). Figueroa's testimony was based on her review of "weekly data"
E. Balancing Of The Harms And The Public Interest
As the Court has concluded that Plaintiffs are not likely to succeed on the merits of their claims and have presented insufficient evidence of irreparable harm, the Court need not spend undue time analyzing the remaining two factors of the preliminary injunction standard-balancing of the equities, and the public interest. See Reilly ,
In connection with the balancing of harms prong of the analysis, Defendants called Frank Cervone as an expert to testify to the harms that might occur if the Court granted injunctive relief.
Here, even in the absence of Cervone's testimony, the balance of the equities tilts in favor of Defendants. If the Court were to grant Plaintiffs' Injunction Motion, the Court would, in essence, cast aside DHS's and Philadelphia's reasonable objectives in seeking the enforcement of the Services Contract and the Fair Practices Ordinance incorporated into the Services Contract. As discussed in connection with Plaintiffs' claim under the Free Exercise Clause, Defendants' interests in this case are manifold, but at a minimum, include six important governmental objectives.
First, DHS and Philadelphia have a legitimate interest in ensuring that when contractors agree to terms in a government contract, the contractors adhere to those terms. Second, DHS and Philadelphia have a legitimate interest in ensuring that when its contractors voluntarily agree to be bound by local laws, the local laws are enforced. Third, DHS and Philadelphia have a legitimate interest in ensuring that when they employ contractors to provide governmental services, the services are accessible to all Philadelphians who are qualified for the services. Fourth, in the context of foster care and adoption, DHS and Philadelphia have a legitimate interest in ensuring that the pool of fоster parents and resource caregivers is as diverse and broad as the children in need of foster parents and resource caregivers. Fifth, DHS and Philadelphia have a legitimate interest in ensuring that individuals who pay taxes to fund government contractors are not denied access to those services.
Granting an injunction in the face of the foregoing legitimate interests would be in direct conflict with the balance of harms and the public interest. Accordingly, the Court concludes that the balance of harms and the public interest militate in favor of denying the Injunction Motion.
V. CONCLUSION
For the reasons set forth above, and having considered all four factors implicated by the preliminary injunction standard, Plaintiffs' Amended Motion for Temporary Restraining Order and Preliminary Injunction (ECF No. 13) is DENIED . An appropriate Order follows.
Notes
On June 7, 2018, Plaintiffs filed an Amended Motion for Temporary Restraining Order and Preliminary Injunction because of the Parties' concern that the initial Motion may not have adequately protected the privacy interests of certain minor children identified in the initial Motion. See Jun. 20, 2018 Order, ECF No. 32 (dismissing as moot and sealing the initial Motion). Accordingly, unless otherwise noted, the Court's references to the Injunction Motion are references to Plaintiffs' Amended Motion for Temporary Restraining Order and Preliminary Injunction (ECF No. 13).
On June 18, 2018, the Court accepted the Intervenors' Opposition Brief as an amicus brief. The Court's acceptance of the Amicus Brief is memorialized by order dated June 20, 2018. Jun. 20, 2018 Order, ECF No. 33.
If the Court accepts Plaintiffs' asserted date of May 16, 2018 as the filing date for the Complaint, then Plaintiffs' Injunction Motion was filed twenty days after first filing suit.
During the evidentiary hearing, testimony by James Amato, Secretary and Executive Vice President of CSS, revealed that it is CSS policy to refuse to certify any prospective foster parent without a "clergy letter" from a religious minister. See Jun. 19, 2017 Hearing Tr. 34-35 (Amato) (testifying to Amato's title and responsibilities at CSS); Jun. 19, 2017 Hearing Tr. 95-96 (Amato) (explaining that a clergy letter is required for certification by CSS because the letter "is a very good indication of [a prospective foster parent's] commitment to their faith" and explaining that CSS will not, to Amato's knowledge, certify a prospective resource parent without a clergy letter). While the religious affiliation of the minister writing the clergy letter does not matter, Amato explained that the receipt of a clergy letter on behalf of a prospective foster parent is an absolute condition to CSS's certification of that prospective foster parent. Jun. 19, 2017 Hearing Tr. 95:12-16, 95:21-23 (Amato). It appears, therefore, that CSS will not certify prospective foster parents who are religious but whose religious exercise does not include a relationship with a minister, prospective foster parents who choose not to associate with any religious tradition, or prospective foster parents who associate with a religious tradition that does not have religious ministers willing or able to provide a clergy letter. This evidence is disconcerting to the Court because it raises serious constitutional as well as contractual questions. Among other things, this policy appears to contravene CSS's contractual obligations under its contract with DHS under Section 4.1(k). Section 4.1(k) prohibits CSS from discriminating against individuals based on the individuals' religious beliefs. Section 4.1(k) provides that CSS:
shall inform all individuals to whom Services are provided, whether directly or indirectly, of the following: "The Philadelphia Department of Human Services' selection of a faith-based provider of social services is not an endorsement of the Provider's religious character, practices or beliefs. No Provider of social services may discriminate against you on the basis of religion, a religious belief or your refusal to actively participate in religious practices."
Decl. of James Amato Ex. B, ECF p. 29 of 39, ECF No. 13-4. Indeed, on June 25, 2018, Counsel for CSS delivered a letter to the Court representing that CSS "will agree not to require pastoral letters." Letter from Mark Rienzi, Attorney for Plaintiffs, to Chambers of Judge Petrese B. Tucker (Jun. 25, 2018), ECF No. 40.
Still, as the questions CSS's pastoral letter requirement poses are not squarely before the Court, the Court will, for purposes of the Injunction Motion, refrain from further discussion of the matter.
The following findings of facts are set forth pursuant to Fed. R. Civ. P. 52(a)(2) (requiring that "[i]n granting or refusing an interlocutory injunction, the court must [ ] state the findings and conclusions that support its action.").
Certification of prospective foster parents requires a licensed foster family care agency to evaluate prosрective foster parents using the criteria set forth under
The term "public accommodation" is defined under the Philadelphia Fair Practices Ordinance as:
Any [ ] provider, whether licensed or not, which solicits or accepts patronage or trade of the public or whose ... services, facilities ... are extended, offered [ ] or otherwise made available to the public; including all ... services provided by any public agency or authority; any agency, authority or other instrumentality of ... the City, its departments, boards and commissions.
Philadelphia Fair Practices Ordinance § 9-1102 (Definitions) at 4, Chapter 9-1100 of the Philadelphia Code.
Julia Terruso, Two Foster Agencies in Philly Won't Place Kids with LGBTQ People, Philly.com (Mar. 13, 2018, 9:05 AM), http://www.philly.com/philly/news/foster-adoption-lgbtq-gay-same-sex-philly-bethany-archdiocese-20180313.html.
Congregate care is a broad term used to describe a variety of "nonfamily-like [foster care] settings." Jun. 18, 2018 Hearing Tr. 93:6 (Ali).
The standard for issuing a temporary restraining order is the same as that for ordering a preliminary injunction. Ride the Ducks, LLC v. Duck Boat Tours, Inc. , No. CIV. A. 04-CV-5595,
The following discussion and conclusions of law are set forth pursuant to Fed. R. Civ. P. 52(a)(2).
Patricia Wen, Catholic Charities Stuns State, Ends Adoptions, boston.com (Mar. 11, 2006), http://archive.boston.com/news/local/articles/2006/03/11/catholic_charities_stuns_state_ends_ad options/.
Julia Duin, Catholics End D.C. Foster-Care Program, (Feb. 18, 2010), https://www.washingtontimes.com/news/2010/feb/18/dc-gay-marriage-law-archdiocese-end-foster-care/.
Manya A. Brachear, 3 Dioceses Drop Foster Care Lawsuit-Catholic Charities To End Service Rather Than Work With Parents In Civil Unions, ChicagoTribute.com (Nov. 15, 2011), http://articles.chicagotribune.com/2011-11-15/news/ct-met-catholic-charities-foster-care-20111115_1_civil-unions-act-catholic-charities-religious-freedom-protection.
Elizabeth Fernandez, Catholic Agency Finds Way Out Of Adoption Ban/Alliance With other Groups Gets Around Same-Sex Parent Issue, SFGate.com (Aug. 27, 2006, 4:00 AM), https://www.sfgate.com/bayarea/article/SAN-FRANCISCO-Catholic-agency-finds-way-out-of-2470402.php.
Foster Care & Adoption Services, https://cssphiladelphia.org/adoption/ (last visited Jul. 1, 2018).
See Jun. 18, 2018 Hearing Tr. 65:17 (Fulton) (testifying to seeing a television commercial about foster care); Foster Care & Adoption Services, https://cssphiladelphia.org/adoption/ (last visited Jul. 1, 2018) (soliciting prospective foster parents through a website).
Decl. of James Amato Ex. B, ECF p. 35 of 39, ECF No. 13-4 (Services Contract providing that "[CSS] shall identify the Department as a funding source in all literature, documents reports or pamphlets which Provider publishes develops or produces in connection with this Contract.").
"[R]ational basis review requires merely that the action be rationally related to a legitimate government objective." Tenafly Eruv Ass'n, Inc. ,
The state court in Catholic Charities of the Diocese of Springfield, et al. v. Madigan, et al. similarly focused on context in granting summary judgment for the State of Illinois in a factually analogous dispute to the dispute in this case. See Section IV.A for a summary of the case in Madigan ; see also Summary Judgment Order 2, Catholic Charities of the Diocese of Springfield, et al. v. Madigan, et al. , No. 2011-MR-254,
This fact contradicts Plaintiffs' argument that DHS and Philadelphia specifically targeted CSS for its Catholic practices and association with the Archbishop of the Philadelphia Archdiocese. See below Section IV.C.2.ii addressing Plaintiffs' argument that strict scrutiny should apply in reviewing Defendants' actions because Defendants purportedly targeted Plaintiffs for Plaintiffs' religious beliefs.
See Martinez ,
See, e.g. , Campaign for Southern Equality v. Mississippi Dep't of Human Servs. ,
The Court notes that while the Third Circuit rejected "avoiding 'an Establishment Clause controversy' " as a government interest in Tenafly , in that case, the Third Circuit concluded that strict scrutiny applied and, thus, a "possible" Establishment Clause controversy could not meet the exacting requirements of a "compelling" government interest.
The Court also notes here that although CSS has disclaimed responsibility as a government actor in connection with some aspects of its claims, CSS, otherwise has urged the Court to consider CSS as a government contractor "akin to a government employee" in connection with its argument on Free Speech grounds. Pls.' Br. 26, ECF No. 10-2. The Court need not decide whether CSS would qualify as a state actor at this time in connection with any possible Equal Protection or Establishment Clause claim.
When asked whether the public law school was required to exempt a faith-based student group's decision from an all-comers/nondiscrimination policy, the Supreme Court answered that "[t]his Court's decision in Employment Div., Dept. of Human Resources of Ore. v. Smith , ... unequivocally answers no to that ... question." Martinez ,
The difficulty in Plaintiffs relying on the Mayor's statements, in part, stems from the fact that the Mayor himself was raised Catholic and, therefore, it is conceivable that when the Mayor has commented on Catholicism in the past, he was commenting on Catholic ideas as they related to his own faith. The Supreme Court has recently reminded the courts that they are to "take care not to engage in [ ] any judicial psychoanalysis" of lawmakers. Trump v. Hawaii , --- U.S. ----,
Patrick Kerkstra, Jim Kenney's Long War With The Archdiocese, Phillymag.com, (July 9, 2015, 11:23 PM), https://www.phillymag.com/citified/2015/07/09/jim-kenney-catholic-archdiocese-charles-chaput/.
David O'Reilly, Chaput Edict Draws Mixed Reviews; Kenney Calls It 'Not Christian', Philly.com, (Jul. 6, 2016, 11:04 PM), http://www.philly.com/philly/news/20160707_Chaput_edict_draws_mixed_reviews_Kenney_calls_it_not_Christian_.html. See Mot. for Temporary Restraining Order or Preliminary Injunction Ex. 1-J, ECF No. 10-17.
Tom MacDonald, Philly Halts Foster Placements With 2 Faith-Based Agencies Shutting Out LGBT Couples, WHYY.com, (Mar. 16, 2018), https://whyy.org/articles/philly-halts-foster-placements-2-faith-based-agencies-shutting-lgbt-couples/. This article was cited in Plaintiffs' Brief and is attached as Exhibit 1-U to Plaintiffs' initial Injunction Motion. See Mot. for Temporary Restraining Order or Preliminary Injunction Ex. 1-U, ECF No. 10-28.
As discussed in detail above, the Commonwealth Court held that childcare "is not a fundamental religious activity of a church" even if childcare may "aid[ ] in carrying out the Church's religious mission." Ridley ,
Plaintiffs claim that "all four types of burden" considered "substantial" under § 2403 of RFPA are implicated in this case. Plaintiffs assert that DHS's actions "[s]ignificantly constrain[ ] or inhibit[ ] conduct or expression mandated by [Catholic Social Services'] religious beliefs" and "[d]en[y] [CSS] a reasonable opportunity to engage in activities which are fundamental to the [agency's] religion." Pls.' Proposed Findings of Fact and Conclusions of Law ¶ 126, ECF No. 46 (alterations in original); see also Pls.' Br. 12, ECF No. 10-2 (asserting same burdens using verbatim language). Elsewhere, Plaintiffs also state that DHS's actions "curtail ... Catholic Social Services' 'ability to express adherence' to its faith, and attempt to '[c]ompel[ ] conduct or express which violates a specific tenet of [Catholic Social Services'] religious faith.' " Pls.' Br. 14, ECF No. 10-2 (alterations in original).
The Court disagrees that DHS and Philadelphia are conditioning the grant of a contract to CSS on CSS's agreement to "adopt [a] particular belief." Pls.' Proposed Findings of Fact and Conclusions of Law 67, ECF No. 46. DHS and Philadelphia ask only what they would ask of any contracting party, that CSS enter into the contract consistent with the duty of good faith and fair dealing. DHS and Philadelphia have asked CSS to confirm that, to the extent CSS would enter into an agreement that CSS could perform in accordance with the contract's fair practices provisions.
See McTernan v. City of York ,
Cervone serves as the executive director of the Center for Child Advocates. Jun. 21, 2018 Hr'g Tr. 153:5-9 (Cervone). Cervone has had, and continues to have, a long and distinguished career in advocating for children. The Court thanks Mr. Cervone for his dedication to a life of public service.
Preventing discrimination in the provision of public services is undeniably a legitimate interest. As the Supreme Court in Heart of Atlanta Motel, Inc. v. United States proclaimed:
Discrimination is not simply dollars and cents, hamburgers and movies; it is the humiliation, frustration, and embarrassment that a person must surely feel when he is told that he is unacceptable as a member of the public because of his race or color. It is equally the inability to explain to a child that regardless of education, civility, courtesy, and morality he will be denied the right to enjoy equal treatment, even though he be a citizen of the United States and may well be called upon to lay down his life to assure this Nation continues.