(Slip Opinion) OCTOBER TERM, 2020 1 Syllabus NOTE: Where it is feasible, a syllabus (headnote) will be released, as is being done in connection with this case, at the time the opinion is issued. The syllabus constitutes no part of the opinion of the Court but has been prepared by the Reporter of Decisions for the convenience of the reader. See United States v. Detroit Timber & Lumber Co., 200 U. S. 321, 337. SUPREME COURT OF THE UNITED STATES Syllabus FULTON ET AL. v. CITY OF PHILADELPHIA, PENNSYLVANIA, ET AL. CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT No. 19–123. Argued November 4, 2020—Decided June 17, 2021 Philadelphia’s foster care system relies on cooperation between the City and private foster care agencies. The City enters standard annual con- tracts with the agencies to place children with foster families. One of the responsibilities of the agencies is certifying prospective foster fam- ilies under state statutory criteria. Petitioner Catholic Social Services has contracted with the City to provide foster care services for over 50 years, continuing the centuries-old mission of the Catholic Church to serve Philadelphia’s needy children. CSS holds the religious belief that marriage is a sacred bond between a man and a woman. Because CSS believes that certification of prospective foster families is an en- dorsement of their relationships, it will not certify unmarried cou- ples—regardless of their sexual orientation—or same-sex married cou- ples. But other private foster agencies in Philadelphia will certify same-sex couples, and no same-sex couple has sought certification from CSS. Against this backdrop, a 2018 newspaper story recounted the Archdiocese of Philadelphia’s position that CSS could not consider prospective foster parents in same-sex marriages. Calls for investiga- tion followed, and the City ultimately informed CSS that unless it agreed to certify same-sex couples the City would no longer refer chil- dren to the agency or enter a full foster care contract with it in the future. The City explained that the refusal of CSS to certify same-sex married couples violated both a non-discrimination provision in the agency’s contract with the City as well as the non-discrimination re- quirements of the citywide Fair Practices Ordinance. CSS and three affiliated foster parents filed suit seeking to enjoin the City’s referral freeze on the grounds that the City’s actions violated the Free Exercise and Free Speech Clauses of the First Amendment. 2 FULTON v. PHILADELPHIA Syllabus The District Court denied preliminary relief. It reasoned that the con- tractual non-discrimination requirement and the Fair Practices Ordi- nance were both neutral and generally applicable under Employment Div., Dept. of Human Resources of Ore. v. Smith, 494 U. S. 872, and that CSS’s free exercise claim was therefore unlikely to succeed. The Court of Appeals for the Third Circuit affirmed. Given the expiration of the parties’ contract, the Third Circuit examined whether the City could condition contract renewal on the inclusion of new language for- bidding discrimination on the basis of sexual orientation. The court concluded that …
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