Supreme Court

Fulton v. the City of Philadelphia

Our government's top priority for the foster care system must be to protect vulnerable children.  Taxpayer-funded foster care agencies working on behalf of the government should never be allowed to use religious tests to deny children the opportunity to find loving homes because a qualified parent is the “wrong” religion or LGBTQ.

Sadly, on June 17, 2021, the U.S. Supreme Court issued a narrow decision in Fulton v. The City of Philadelphia that concluded, because of the specific facts of the case, that Philadelphia must exempt a faith-based, taxpayer-funded foster care agency from its nondiscrimination policies.

However, it was a narrow decision that did not grant religious extremists the sweeping free pass they were seeking to discriminate wherever and however they want. 

“Significantly, the court declined to rewrite the First Amendment to grant a broad license to discriminate in the name of religion. The court also acknowledged the importance of non-discrimination laws and specifically respected the dignity of LGBTQ people.”

~ AU President & CEO Rachel Laser. Read her full statement here.

The vast majority of Americans believe our laws should not allow anyone to use their religious beliefs to harm others. Religious freedom is meant to be a shield that protects the rights of everyone, not a sword used to harm kids in need of loving homes and the families who want to help them.

Americans United will continue to fight in court on behalf of people like Aimee Maddonna, Fatma Marouf and Bryn Esplin – who were turned away by taxpayer-funded foster care agencies in South Carolina and Texas because they didn’t pass the agencies’ religious tests. While the Supreme Court said that Catholic Social Services can continue to discriminate in Philadelphia, where no prospective LGBTQ parents were turned away and there are other foster care agencies available to work with LGBTQ parents, that’s not the case in large parts of the country.

CASE BACKGROUND: 

On June 17, 2021,  the U.S. Supreme Court issued its decision in Fulton v. City of Philadelphia, a case involving a taxpayer-funded foster care agency that wanted the court to create a constitutional right to misuse religious freedom and discriminate against qualified families because they are LGBTQ or don’t follow an agency’s religious tenets. The court issued a narrow decision that was limited to the specific facts of the case, concluding that because Philadelphia allowed individualized exemptions from non-discrimination requirements in its foster care program, it had to exempt Catholic Social Services. Significantly, the Supreme Court did not grant religious extremists the sweeping free pass they were seeking to discriminate wherever and however they want.

The City of Philadelphia learned in March 2018 that two agencies the city had hired to provide foster care services were refusing, based on their religious beliefs, to accept same-sex couples as foster parents. Because the agencies’ actions violated nondiscrimination requirements in the city’s contracts with all foster care agencies, Philadelphia informed the two agencies it would no longer refer children to their care. One agency agreed to comply with the nondiscrimination policy, but the other, Catholic Social Services (CSS), refused and instead sued the city.

The 3rd U.S. Circuit Court of Appeals unanimously affirmed a lower court decision in favor of Philadelphia, but CSS asked the Supreme Court to hear this case – which it did on Nov. 4, 2020. Philadelphia continued to contract with CSS for other foster care services, including case management and operating group homes, because CSS is willing to comply with all contract requirements in those areas.

In August 2020, Americans United filed an amicus brief with the Supreme Court on behalf of four prospective foster families who shared their devastating experiences of contacting child-placement agencies in hopes of helping vulnerable children – only to be turned away because they couldn’t pass the religious litmus tests of the agencies hired by the government to find homes for those children. 

Those families in AU's brief included AU client Aimee Maddonna, a South Carolina mother of three, and Americans United-Lambda Legal clients Fatma Marouf and Bryn Esplin, a married same-sex couple from Texas. Both were turned away by taxpayer-funded foster care agencies – Aimee because she's Catholic, and Fatma and Bryn because they're lesbians.

developments

June 17, 2021: The U.S. Supreme Court issued a narrow opinion in Fulton v. City of Philadelphia that didn't grant religious extremists the sweeping free pass to discriminate in the name of religion that they were seeking. Read AU's statement here.

Nov. 4, 2020: The U.S. Supreme Court hears oral argument in Fulton v. City of Philadelphia. A decision is expected by June 2021. Read AU's statement here.

Aug. 20, 2020: Americans United files an amicus brief with the U.S. Supreme Court on behalf of four prospective foster families who shared their devastating experiences of being turned away by taxpayer-funded foster care agencies because they couldn’t pass the agencies' religious tests. Read AU's statement here and the brief here.

Feb. 24, 2020: The U.S. Supreme Court announces it will hear oral argument in Fulton v. City of Philadelphia. Read AU's statement here.

April 22, 2019: The 3rd U.S. Circuit Court of Appeals rules in Fulton v. City of Philadelphia that the city is not constitutionally required to continue to contract with a foster care agency that refuses to certify same-sex couples as foster parents, a violation of its contract with the city. Read AU's blog post here.

Oct. 4, 2018: Americans United files an amicus brief in Fulton v. City of Philadelphia with the 3rd U.S. Circuit Court of Appeals, explaining that the Constitution does not require Philadelphia to contract with foster care agencies that discriminates against potential foster parents. Read AU's statement here and the brief here.

Aug. 20. 2018: The U.S. Supreme Court denies Catholic Social Services' emergency petition, sending the case back to the  3rd U.S. Circuit Court of Appeals for further proceedings. Read more here in AU's Church & State magazine.

July 27, 2018: The 3rd U.S. Circuit Court of Appeals denies Catholic Social Services' request for an emergency injunction. 

July 13, 2018: A federal judge denies Catholic Social Services request for a preliminary injunction in Fulton v. City of Philadelphia, ruling that the city is not constitutionally required to continue to contract with a foster care agency that refuses to certify same-sex couples as foster parents, a violation of its contract with the city.

June 7, 2018: Catholic Social Services files for a preliminary injunction, asking a federal court to force Philadelphia to continue contracting with CSS for foster care services while the case is pending, even though CSS refuses to abide by the contract's nondiscrimination terms.

May 17, 2018: Catholic Social Services sues the City of Philadelphia in federal court after the city stopped referring children to CSS's care because the agency refused to comply with the nondiscrimination terms in its contract.

Resources