Page 38 - CLT062821

38 ■ JUNE 28, 2021 OPINION

Unanimous SCOTUS City of Philadelphia

Opinion Covers Narrow Ground

By Joette Katz

he City of Philadelphia routinely enters con-
tracts with private foster care agencies that
Toperate under state statutory criteria to place
children with foster families. Last week, in Fulton
v. City of Philadelphia, the United States Supreme
Court considered whether the city could refuse
to refer children for placement to Catholic So-
cial Services, which has contracted with the city
to provide foster care services for more than 50
years, because CSS refused to certify both unmar-
ried couples and same-sex married couples as
prospective foster families.
In deciding to no longer refer children to the
agency or enter a full foster care contract with CSS
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-discrimi-
nation requirements of the citywide Fair Practices
Ordinance. CSS and three affiliated foster parents Joette Katz, a partner with Shipman & Goodwin.
filed suit seeking to enjoin the city’s referral freeze, Courtesy photo.
claiming the city’s actions violated the free exercise vices defined in the contract to prospective foster
and free speech clauses of the First Amendment. parents without regard to their sexual orientation.
The Supreme Court agreed that the city had im- In short, because the exception to this requirement
permissibly burdened CSS’s religious exercise by is at the “sole discretion” of the commissioner, this
forcing it either to curtail its mission or to certify inclusion of a mechanism for entirely discretion-
same-sex couples as foster parents in violation of ary exceptions rendered the non-discrimination
its religious beliefs. Although laws that incidentally provision not generally applicable. This conclusion
burden religion are ordinarily not subject to strict thereby triggered application of strict scrutiny,
scrutiny under the free exercise clause so long as requiring the city to demonstrate a compelling rea-
they are both neutral and generally applicable, the son for its refusal to extend its contracting system
court held the non-discrimination provision at is- to the plaintiffs and that the policy was narrowly
sue was not generally applicable. In reaching that tailored to achieve those interests.
conclusion, the court relied on the added language The question then was not whether the city
in the foster care contract—which allows an entire- had a compelling interest in enforcing its non-
ly discretionary exception to the contract provision discrimination policies generally, but whether it
that otherwise requires an agency to provide ser- had such an interest in denying an exception to

CONNECTICUT
Law Tribune