Fulton v. Philadelphia

Maximizing the number of foster parents, protecting the City from liability, and ensuring equal treatment of prospective foster parents and children were not "interests of the highest order" and, therefore, are not sufficient to survive strict scrutiny.

Pursuant to religious beliefs, Catholic Social Services (CSS) refused to certify same-sex couples to be foster parents. Upon discovering that the agency would not certify same-sex couples, the City stopped referring children to CSS and refused to renew their contract unless they agreed to certify same-sex couples. CSS filed suit against the City and alleged that the referral freeze violated their rights under the Free Exercise and Free Speech Clauses of the First Amendment. The District Court denied preliminary relief and concluded that the free exercise claim was unlikely to succeed under Employment Division, Department of Human Resources of Oregon v. Smith, and the free speech claim was unlikely to succeed because CSS performed certifications as part of a government program. The Court of Appeals for the Third Circuit affirmed. The Court held that maximizing the number of foster parents, protecting the City from liability, and ensuring equal treatment of prospective foster parents and children were not "interests of the highest order" and, therefore, could not survive strict scrutiny. The Court reasoned that CSS sought only an accommodation that would allow them to serve the children of Philadelphia in light of their religious beliefs and did not attempt to impose those beliefs on anyone else. Further, the City offered no compelling reason why it had a particular interest in denying CSS an exception. Reversed and remanded for further proceedings consistent with this opinion.