Case: 2:18-cv-02075-PBT As of: 06/14/2020 07:50 PM EDT 1 of 12
STAYED,APPEAL,STANDARD
United States District Court Eastern District of Pennsylvania (Philadelphia) CIVIL DOCKET FOR CASE #: 2:18−cv−02075−PBT

FULTON et al v. CITY OF PHILADELPHIA et al Assigned to: HONORABLE PETRESE B. TUCKER Case in other court: USCA, 18−02574 Cause: 42:1983 Civil Rights Act
Plaintiff

Date Filed: 05/17/2018 Jury Demand: None Nature of Suit: 440 Civil Rights: Other Jurisdiction: Federal Question

SHARONELL FULTON

represented by LORI H. WINDHAM BECKET FUND FRO RELIGIOUS LIBERTY 1200 NEW HAMPSHIRE AVENUE NW, SUITE 700 WASHINGTON, DC 20171 202−349−7202 Email: lwindham@becketlaw.org LEAD ATTORNEY ATTORNEY TO BE NOTICED

MARK L. RIENZI THE BECKET FUND FOR RELIGIOUS LIBERTY 1200 NEW HAMPSHIRE AVENUE NW, SUITE 700 WASHINGTON, DC 20036 202−955−0095 Email: mrienzi@becketlaw.org LEAD ATTORNEY ATTORNEY TO BE NOTICED

NICHOLAS M. CENTRELLA CONRAD O'BRIEN 1500 MARKET ST., CENTRE SQUARE WEST TOWER 39TH FLOOR PHILADELPHIA, PA 19102 215−864−8098 Fax: 215−864−0798 Email: ncentrella@conradobrien.com LEAD ATTORNEY ATTORNEY TO BE NOTICED

NICHOLAS R. REAVES THE BECKET FUND FOR RELIGIOUS LIBERTY 1200 NEW HAMPSHIRE AVENUE, NW, SUITE 700 WAHSINGTON, DC 20036 202−955−0095 Email: nreaves@becketlaw.org LEAD ATTORNEY ATTORNEY TO BE NOTICED

STEPHANIE H. BARCLAY THE BECKET FUND FOR RELIGIOUS LIBERTY 1200 NEW HAMPSHIRE AVE NW SUITE 700 WASHINGTON, DC 20036 202−955−0095 Email: sbarclay@becketlaw.org

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Plaintiff CECELIA PAUL
Plaintiff TONI LYNN SIMMS−BUSCH

LEAD ATTORNEY ATTORNEY TO BE NOTICED
JOHN A. GUERNSEY CONRAD O'BRIEN, PC 1500 MARKET STREET WEST TOWER SUITE 3900 PHILADELPHIA, PA 19102 215−864−9600 Fax: 215−864−9620 Email: jguernsey@cogr.com ATTORNEY TO BE NOTICED
represented by LORI H. WINDHAM (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
MARK L. RIENZI (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
NICHOLAS M. CENTRELLA (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
NICHOLAS R. REAVES (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
STEPHANIE H. BARCLAY (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
JOHN A. GUERNSEY (See above for address) ATTORNEY TO BE NOTICED
represented by LORI H. WINDHAM (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
MARK L. RIENZI (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
NICHOLAS M. CENTRELLA (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
NICHOLAS R. REAVES (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

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Plaintiff CATHOLIC SOCIAL SERVICES

STEPHANIE H. BARCLAY (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
JOHN A. GUERNSEY (See above for address) ATTORNEY TO BE NOTICED
represented by LORI H. WINDHAM (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
MARK L. RIENZI (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
NICHOLAS M. CENTRELLA (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
NICHOLAS R. REAVES (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
STEPHANIE H. BARCLAY (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
JOHN A. GUERNSEY (See above for address) ATTORNEY TO BE NOTICED

V. Defendant CITY OF PHILADELPHIA

represented by ELEANOR N. EWING CITY OF PHILA. LAW DEPT. 1515 ARCH ST. 17TH FL. PHILADELPHIA, PA 19102 215−683−5012 Fax: 215−683−5296 Email: eleanor.ewing@phila.gov LEAD ATTORNEY ATTORNEY TO BE NOTICED
BENJAMIN H. FIELD City of Philadelphia Law Department Deputy City Solicitor 1515 Arch Street 17th Floor PHILADELPHIA, PA 19102 215−683−5024 Fax: 215−683−5397 Email: benjamin.field@phila.gov ATTORNEY TO BE NOTICED

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Defendant
DEPARTMENT OF HUMAN SERVICES FOR THE CITY OF PHILADELPHIA

DIANA P. CORTES CITY OF PHILADELPHIA LAW DEPARTMENT 1515 ARCH ST. 17TH FLOOR PHILADELPHIA, PA 19103 215−683−5038 Email: Diana.Cortes@Phila.gov ATTORNEY TO BE NOTICED
JANE LOVITCH ISTVAN CITY OF PHILA LAW DEPT 1515 ARCH ST., 17TH FL PHILADELPHIA, PA 19102−1595 215−683−5007 Email: jane.istvan@phila.gov ATTORNEY TO BE NOTICED
MICHAEL WU−KUNG PFAUTZ CITY OF PHILADELPHIA LAW DEPARTMENT 1515 ARCH STREET, 15TH FLOOR PHILADELPHIA, PA 19102 215−683−5233 Email: michael.pfautz@phila.gov ATTORNEY TO BE NOTICED
SCHAUNDRA OLIVER CITY OF PHILADELPHIA LAW DEPARTMENT 1515 ARCH STREET, 16TH FLOOR PHILADELPHIA, PA 19102 215−683−5142 Email: schaundra.oliver@phila.gov ATTORNEY TO BE NOTICED
represented by ELEANOR N. EWING (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
BENJAMIN H. FIELD (See above for address) ATTORNEY TO BE NOTICED
DIANA P. CORTES (See above for address) ATTORNEY TO BE NOTICED
JANE LOVITCH ISTVAN (See above for address) ATTORNEY TO BE NOTICED
MICHAEL WU−KUNG PFAUTZ (See above for address) ATTORNEY TO BE NOTICED
SCHAUNDRA OLIVER (See above for address) ATTORNEY TO BE NOTICED

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Defendant
PHILADELPHIA COMMISSION ON HUMAN RELATIONS

represented by ELEANOR N. EWING (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
BENJAMIN H. FIELD (See above for address) ATTORNEY TO BE NOTICED
DIANA P. CORTES (See above for address) ATTORNEY TO BE NOTICED
JANE LOVITCH ISTVAN (See above for address) ATTORNEY TO BE NOTICED
MICHAEL WU−KUNG PFAUTZ (See above for address) ATTORNEY TO BE NOTICED
SCHAUNDRA OLIVER (See above for address) ATTORNEY TO BE NOTICED

V.
Intervenor Defendant
SUPPORT CENTER FOR CHILD ADVOCATES

represented by LESLIE COOPER AMERICAN CIVIL LIBERTIES UNION 125 BROAD STREET 18TH FLOOR NEW YORK, NY 10004 212−549−2627 Email: LCooper@aclu.org LEAD ATTORNEY ATTORNEY TO BE NOTICED
CATHERINE VERA WIGGLESWORTH DECHERT LLP 2929 ARCH STREET CIRA CENTRE PHILADELPHIA, PA 19104 215−994−2432 Email: catherine.wigglesworth@dechert.com ATTORNEY TO BE NOTICED
FRED T. MAGAZINER DECHERT LLP 2929 ARCH ST CIRA CENTRE PHILADELPHIA, PA 19104−2808 215−994−2587 Email: FRED.MAGAZINER@DECHERT.COM ATTORNEY TO BE NOTICED
MARY CATHERINE ROPER ACLU OF PA PO BOX 60173 PHILADELPHIA, PA 19102 215−592−1513

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Intervenor Defendant PHILADELPHIA FAMILY PRIDE

Email: mroper@aclupa.org ATTORNEY TO BE NOTICED
MOLLY M. TACK−HOOPER American Civil Liberties Union of Washington Foundation 901 Fifth Avenue Suite 630 Seattle, WA 98164 206−624−2184 Email: mtackhooper@aclu−wa.org ATTORNEY TO BE NOTICED
WILL W. SACHSE DECHERT, PRICE & RHOADS CIRA CENTRE 2929 ARCH STREET PHILADELPHIA, PA 19104 215−994−4000 Email: will.sachse@dechert.com ATTORNEY TO BE NOTICED
represented by LESLIE COOPER (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
CATHERINE VERA WIGGLESWORTH (See above for address) ATTORNEY TO BE NOTICED
FRED T. MAGAZINER (See above for address) ATTORNEY TO BE NOTICED
MARY CATHERINE ROPER (See above for address) ATTORNEY TO BE NOTICED
MOLLY M. TACK−HOOPER (See above for address) ATTORNEY TO BE NOTICED
WILL W. SACHSE (See above for address) ATTORNEY TO BE NOTICED

Date Filed 05/17/2018
05/17/2018

# Docket Text
1 COMPLAINT against CITY OF PHILADELPHIA, DEPARTMENT OF HUMAN SERVICES FOR THE CITY OF PHILADELPHIA, PHILADELPHIA COMMISSION ON HUMAN RELATIONS ( Filing fee $ 400 receipt number 178509.), filed by TONI LYNN SIMMS−BUSCH, SHARONELL FULTON, CECELIA PAUL, CATHOLIC SOCIAL SERVICES. (Attachments: # 1 Case Management Track Form, # 2 Civil Cover Sheet, # 3 Designation Form, # 4 Exhibit, # 5 Exhibit, # 6 Exhibit, # 7 Exhibit, # 8 Exhibit, # 9 Exhibit, # 10 Exhibit, # 11 Exhibit)(jwl, ) (Entered: 05/17/2018)
2 Disclosure Statement Form pursuant to FRCP 7.1 by CATHOLIC SOCIAL SERVICES.(jwl, ) (Entered: 05/17/2018)

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05/17/2018 06/01/2018 06/01/2018 06/01/2018 06/05/2018 06/05/2018 06/05/2018 06/05/2018 06/06/2018
06/06/2018
06/07/2018

Summons Issued as to CITY OF PHILADELPHIA, DEPARTMENT OF HUMAN SERVICES FOR THE CITY OF PHILADELPHIA, PHILADELPHIA COMMISSION ON HUMAN RELATIONS. Three Forwarded To: Counsel on 5/17/18 (jwl, ) (Entered: 05/17/2018)
3 MOTION for Pro Hac Vice of Nicholas Reaves ( Filing fee $ 40 receipt number 0313−12842006.) filed by CATHOLIC SOCIAL SERVICES, SHARONELL FULTON, CECELIA PAUL, TONI LYNN SIMMS−BUSCH.Certificate of Service.(CENTRELLA, NICHOLAS) (Entered: 06/01/2018)
4 MOTION for Pro Hac Vice of Lori Windham ( Filing fee $ 40 receipt number 0313−12842042.) filed by CATHOLIC SOCIAL SERVICES, SHARONELL FULTON, CECELIA PAUL, TONI LYNN SIMMS−BUSCH.Certificate of Service.(CENTRELLA, NICHOLAS) (Entered: 06/01/2018)
5 MOTION for Pro Hac Vice of Mark L. Rienzi ( Filing fee $ 40 receipt number 0313−12842065.) filed by CATHOLIC SOCIAL SERVICES, SHARONELL FULTON, CECELIA PAUL, TONI LYNN SIMMS−BUSCH.Certificate of Service.(CENTRELLA, NICHOLAS) (Entered: 06/01/2018)
6 Proposed Order Granting 7 Plaintiffs Motion for Leave to File a Memorandum Over 25 Pages filed by CATHOLIC SOCIAL SERVICES.(CENTRELLA, NICHOLAS) Modified on 6/6/2018 (tjd). (Entered: 06/05/2018)
7 MOTION for Leave to File Excess Pages in Support of their Motion for a Temporary Restraining Order and Preliminary Injunction filed by CATHOLIC SOCIAL SERVICES, SHARONELL FULTON, CECELIA PAUL, TONI LYNN SIMMS−BUSCH.PLF's Opposed MTN for Leave and Cert of Service.(CENTRELLA, NICHOLAS) (Entered: 06/05/2018)
8 NOTICE of Appearance by BENJAMIN H. FIELD on behalf of CITY OF PHILADELPHIA, DEPARTMENT OF HUMAN SERVICES FOR THE CITY OF PHILADELPHIA, PHILADELPHIA COMMISSION ON HUMAN RELATIONS with Certificate of Service(FIELD, BENJAMIN) (Entered: 06/05/2018)
9 NOTICE of Appearance by ELEANOR N. EWING on behalf of CITY OF PHILADELPHIA, DEPARTMENT OF HUMAN SERVICES FOR THE CITY OF PHILADELPHIA, PHILADELPHIA COMMISSION ON HUMAN RELATIONS with Certificate of Service(EWING, ELEANOR) (Entered: 06/05/2018)
11 ORDER THAT PLAINTIFFS' UNOPPOSED MOTION FOR LEAVE TO FILE A MEMORANDUM OVER 25 PAGES IN SUPPORT OF THEIR MOTION FOR A TEMPORARY RESTRAINING ORDER AND PRELIMINARY INJUNCTION IS GRANTED. DEFENDANTS SHALL FILE A RESPONSE TO PLAINTIFFS' MOTION FOR A TEMPORARARY RESTRAINING ORDER AND PRELIMINARY INJUNCTION BY NO LATER THAN 6/12/18. THE PARTIES SHALL APPEAR FOR A EVIDENTIARY HEARING ON PLAINTIFFS' MOTION FOR A TEMPORARY RESTRAINING ORDER AND PRELIMINARY INJUNCTION ON 6/18/18 AT 2:00 PM IN COURTROOM 16B. SIGNED BY HONORABLE PETRESE B. TUCKER ON 6/6/18. 6/6/18 ENTERED AND COPIES MAILED AND E−MAILED.(mbh, ). (Entered: 06/06/2018)
12 ORDER THAT THE APPLICATIONS FOR ADMISSION PRO HAC VICE OF NICHOLAS R. REAVES, ESQ, LORI H. WINDHAM, ESQ AND MARK L. RIENZI, ESQ ARE GRANTED AND NICHOLAS R. REAVES, ESQ, LORI H. WINDHAM, ESQ AND MARK L. RIENZI, ESQ ARE ADMITTED PRO HAC VICE TO THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF PENNSYVANIA FOR THE PENDENCY OF THIS MATTER. SIGNED BY HONORABLE PETRESE B. TUCKER ON 6/6/18. 6/6/18 ENTERED AND COPIES MAILED AND E−MAILED.(mbh, ) (Entered: 06/06/2018)
13 Amended MOTION for Temporary Restraining Order , Amended MOTION for Preliminary Injunction filed by CATHOLIC SOCIAL SERVICES, SHARONELL FULTON, CECELIA PAUL, TONI LYNN SIMMS−BUSCH.Memorandum, Declaration, Certificate of Service. (Attachments: # 1 Text of Proposed Order, # 2 Memorandum, # 3 Exhibit 1 part 1, Amato Declaration, # 4 Exhibit 1 part 2, # 5 Exhibit 1 part 3, # 6 Exhibit 1 part 4, # 7 Exhibit 1 part 5, # 8 Exhibit 1 part 6, # 9 Exhibit 1 part 7, # 10 Exhibit 2, # 11 Exhibit 3, # 12 Exhibit 4, # 13 Exhibit 5, # 14

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06/08/2018 06/11/2018 06/11/2018 06/12/2018 06/12/2018 06/12/2018 06/12/2018
06/13/2018
06/13/2018 06/14/2018 06/14/2018 06/14/2018

Exhibit 6)(RIENZI, MARK) (Entered: 06/07/2018)
14 MOTION to Intervene filed by PHILADELPHIA FAMILY PRIDE, SUPPORT CENTER FOR CHILD ADVOCATES.Certificate of Service.(WIGGLESWORTH, CATHERINE) (Entered: 06/08/2018)
15 NOTICE of Appearance by MOLLY M. TACK−HOOPER on behalf of PHILADELPHIA FAMILY PRIDE, SUPPORT CENTER FOR CHILD ADVOCATES with Certificate of Service(TACK−HOOPER, MOLLY) (Entered: 06/11/2018)
16 NOTICE of Appearance by MARY CATHERINE ROPER on behalf of PHILADELPHIA FAMILY PRIDE, SUPPORT CENTER FOR CHILD ADVOCATES with Certificate of Service(ROPER, MARY) (Entered: 06/11/2018)
17 NOTICE of Appearance by DIANA P. CORTES on behalf of CITY OF PHILADELPHIA, DEPARTMENT OF HUMAN SERVICES FOR THE CITY OF PHILADELPHIA, PHILADELPHIA COMMISSION ON HUMAN RELATIONS with Certificate of Service(CORTES, DIANA) (Entered: 06/12/2018)
18 MOTION for Pro Hac Vice Admission of Leslie Cooper ( Filing fee $ 40 receipt number 0313−12863444.) filed by PHILADELPHIA FAMILY PRIDE, SUPPORT CENTER FOR CHILD ADVOCATES.Certificate of Service.(TACK−HOOPER, MOLLY) (Entered: 06/12/2018)
19 MOTION to Seal filed by CITY OF PHILADELPHIA, DEPARTMENT OF HUMAN SERVICES FOR THE CITY OF PHILADELPHIA, PHILADELPHIA COMMISSION ON HUMAN RELATIONS.Motion for Leave to File Under Seal with Certificate of Service and Proposed Order. (Attachments: # 1 Text of Proposed Order)(FIELD, BENJAMIN) (Entered: 06/12/2018)
20 RESPONSE in Opposition re 13 Amended MOTION for Temporary Restraining Order Amended MOTION for Preliminary Injunction , 10 MOTION for Temporary Restraining Order and MOTION for Preliminary Injunction filed by CITY OF PHILADELPHIA, DEPARTMENT OF HUMAN SERVICES FOR THE CITY OF PHILADELPHIA, PHILADELPHIA COMMISSION ON HUMAN RELATIONS. (Attachments: # 1 Exhibit Ex.1 − Declaration of K. Ali, # 2 Exhibit Ex. 1−A, # 3 Exhibit Ex. 1−B, # 4 Exhibit Ex. 1−C, # 5 Exhibit Ex. 1−D, # 6 Exhibit Ex. 2 − Declaration of C. Figueroa, # 7 Exhibit Ex. 3 − Declaration of B. Field, # 8 Exhibit Ex. 3−A, # 9 Exhibit Ex. 3−B, # 10 Text of Proposed Order Proposed Order)(FIELD, BENJAMIN) (Entered: 06/12/2018)
21 Memorandum of law in opposition to plffs' motion for temporary restraining order and preliminary injunction, Certificate of Service, filed by DEFTS CITY OF PHILADELPHIA, DEPARTMENT OF HUMAN SERVICES FOR THE CITY OF PHILADELPHIA, PHILADELPHIA COMMISSION ON HUMAN RELATIONS. (FILED UNDER SEAL) (kw, ) (Additional attachment(s) added on 6/14/2018: # 1 sealed document) (tjd, ). (Entered: 06/13/2018)
22 MOTION for Pro Hac Vice of Stephanie H. Barclay ( Filing fee $ 40 receipt number 0313−12866336.) filed by CATHOLIC SOCIAL SERVICES, SHARONELL FULTON, CECELIA PAUL, TONI LYNN SIMMS−BUSCH.Certificate of Service.(CENTRELLA, NICHOLAS) (Entered: 06/13/2018)
23 Letter to Judge Tucker dated June 14, 2018 by CITY OF PHILADELPHIA, DEPARTMENT OF HUMAN SERVICES FOR THE CITY OF PHILADELPHIA, PHILADELPHIA COMMISSION ON HUMAN RELATIONS Regarding Confidential Information (FIELD, BENJAMIN) Modified on 6/18/2018 (tjd). (Entered: 06/14/2018)
24 Letter to Judge Tucker dated June 14, 2018 by CATHOLIC SOCIAL SERVICES, SHARONELL FULTON, CECELIA PAUL, TONI LYNN SIMMS−BUSCH (Attachments: # 1 Declaration)(RIENZI, MARK) Modified on 6/18/2018 (tjd). (Entered: 06/14/2018)
25 ORDER THAT COUNSEL SHALL APPEAR AT THE EVIDENTIARY HEARING SCHEDULED FOR 6/18/2018 AT 2:00 P.M. IN COURTROOM 16B, JAMES A. BYRNE U.S. COURTHOUSE, 601 MARKET STREET, PHILA., PA 19106, ETC. IT

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06/15/2018 06/15/2018 06/18/2018 06/18/2018 06/18/2018 06/20/2018 06/20/2018
06/20/2018
06/20/2018

IS FURTHER ORDERED THAT PLFFS' APPLICATION FOR ADMISSION PRO HAC VICE OF STEPHANIE H. BARCLAY & DEFTS' APPLICATION FOR ADMISSION PRO HAC VICE OF LESLIE COOPER ESQ. ARE GRANTED, ETC. SIGNED BY HONORABLE PETRESE B. TUCKER ON 6/14/18. 6/15/18 ENTERED AND COPIES MAILED AND E−MAILED.(kw, ) (ECF FORM MAILED TO STEPHANIE H. BARCLAY, ESQ.) Modified on 6/15/2018 (kw, ). (Entered: 06/15/2018)
26 NOTICE of Appearance by JOHN A. GUERNSEY on behalf of CATHOLIC SOCIAL SERVICES, SHARONELL FULTON, CECELIA PAUL, TONI LYNN SIMMS−BUSCH (Attachments: # 1 Certificate of Service Certificate of Service for John A. Guernsey)(GUERNSEY, JOHN) (Entered: 06/15/2018)
27 Memorandum of Law in Support re 14 MOTION to Intervene filed by PHILADELPHIA FAMILY PRIDE, SUPPORT CENTER FOR CHILD ADVOCATES. Certificate of Service. (Attachments: # 1 Proposed Answer, # 2 Declaration of Frank P. Cervone, # 3 Declaration of Stephanie Haynes)(TACK−HOOPER, MOLLY) Modified on 6/25/2018 (tjd). (Entered: 06/15/2018)
28 MOTION for Leave to File Opposition to Plaintiffs' Motion for Temporary Restraining Order and Preliminary Injunction filed by PHILADELPHIA FAMILY PRIDE, SUPPORT CENTER FOR CHILD ADVOCATES.Memorandum, Certificate of Service. (Attachments: # 1 Exhibit A, Proposed Intervenors' Opposition to Plaintiffs' Motion for Temporary Restraining Order and Preliminary Injunction)(WIGGLESWORTH, CATHERINE) (Entered: 06/18/2018)
29 NOTICE of Appearance by WILL W. SACHSE on behalf of PHILADELPHIA FAMILY PRIDE, SUPPORT CENTER FOR CHILD ADVOCATES with Certificate of Service(SACHSE, WILL) (Entered: 06/18/2018)
30 NOTICE of Appearance by SCHAUNDRA OLIVER on behalf of CITY OF PHILADELPHIA, DEPARTMENT OF HUMAN SERVICES FOR THE CITY OF PHILADELPHIA, PHILADELPHIA COMMISSION ON HUMAN RELATIONS with Certificate of Service(OLIVER, SCHAUNDRA) (Entered: 06/18/2018)
31 ORDER THAT THE CITY PARTIES' 19 MOTION FOR LEAVE TO FILE DOCUMENTS UNDER SEAL IS GRANTED. SIGNED BY HONORABLE PETRESE B. TUCKER ON 6/18/18.6/20/18 ENTERED AND COPIES MAILED & E−MAILED.(fdc) (Entered: 06/20/2018)
32 ORDER THAT THE FIRST MOTION 10 IS DISMISSED AS MOOT AND THE AMENDED MOTION 13 SHALL BE TREATED AS PLAINTIFFS' ORIGINAL FILING FOR THE PURPOSE OF THIS CASE. IT IS FURTHER ORDERED THAT THE CLERK OF COURT SHALL MAINTAIN THE FIRST MOTION 10 UNDER SEAL TO PROTECT THE PRIVACY INTERESTS AND IDENTITIES OF CERTAIN MINOR CHILDREN IDENTIFIED IN THE FIRST MOTION. SIGNED BY HONORABLE PETRESE B. TUCKER ON 6/20/18.6/20/18 ENTERED AND COPIES MAILED, E−MAILED.(fdc) (Entered: 06/20/2018)
33 ORDER THAT PROPOSED INTERVENORS' 28 MOTION FOR LEAVE TO FILE THEIR MEMORANDUM OF LAW, OR, IN THE ALTERNATIVE, AMICUS BRIEF, IN OPPOSITION TO PLAINTIFFS' MOTION FOR A TEMPORARY RESTRAINING ORDER AND PRELIMINARY INJUNCTION IS GRANTED IN THAT THE COURT ACCEPTS PROPOSED INTERVENORS' MEMORANDUM OF LAW, OR, IN THE ALTERNATIVE, AMICUS BRIEF, IN OPPOSITION TO PLAINTIFFS' MOTION FOR A TEMPORARY RESTRAINING ORDER AND PRELIMINARY INJUNCTION ("AMICUS BRIEF") (DOC.28−1), ATTACHED AS EXHIBIT A TO THE MOTION FOR LEAVE, AS AN AMICUS BRIEF. THE AMICUS BRIEF SHALL BE DEEMED FILED AS OF THE DATE OF THIS ORDER. SIGNED BY HONORABLE PETRESE B. TUCKER ON 6/20/18.6/20/18 ENTERED AND COPIES MAILED & E−MAILED.(fdc) (Entered: 06/20/2018)
34 Memorandum of Law, or, in the Alternative, Amicus Brief, in Opposition to Plaintiffs' 10 Motion for Temporary Restraining Order and Preliminary Injunction filed by PHILADELPHIA FAMILY PRIDE, SUPPORT CENTER FOR CHILD ADVOCATES. (fdc) (Main Document 34 replaced on 6/21/2018) (afm, ). (Entered:

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06/21/2018 06/21/2018 06/21/2018 06/22/2018 06/22/2018 06/25/2018 06/27/2018 06/28/2018
06/28/2018 06/28/2018 06/28/2018 06/28/2018 06/29/2018
06/29/2018

06/20/2018)
35 NOTICE by PHILADELPHIA FAMILY PRIDE, SUPPORT CENTER FOR CHILD ADVOCATES of Withdrawal of appearance of Frank Cervone as Counsel (ROPER, MARY) (Entered: 06/21/2018)
37 Minute Entry for proceedings held before HONORABLE PETRESE B. TUCKER TRO Motion Hearing was held on 6/18/18 (jaa, ) Modified on 6/22/2018 (jaa, ). COURT REPORTER/ESR. (Entered: 06/22/2018)
38 Minute Entry for proceedings held before HONORABLE PETRESE B. TUCKER TRO Motion Hearing was held on 6/19/18 (jaa, ) Modified on 6/22/2018 (jaa, ). COURT REPORTER/ESR. (Entered: 06/22/2018)
36 NOTICE by CITY OF PHILADELPHIA, DEPARTMENT OF HUMAN SERVICES FOR THE CITY OF PHILADELPHIA, PHILADELPHIA COMMISSION ON HUMAN RELATIONS Regarding New Evidence at Hearing (FIELD, BENJAMIN) (Entered: 06/22/2018)
39 Minute Entry, Hearing re: TRO Motion Hearing for proceedings held before HONORABLE PETRESE B. TUCKER in Courtroom 16B on 6/21/18. Court Reporter: Lynn McCloskey. (kw, ) (Entered: 06/25/2018)
40 Letter to Judge Tucker dated June 25, 2018 by CATHOLIC SOCIAL SERVICES, SHARONELL FULTON, CECELIA PAUL, TONI LYNN SIMMS−BUSCH re 36 Notice (Other) in response to City's 6/22 letter (RIENZI, MARK) Modified on 6/26/2018 (tjd). (Entered: 06/25/2018)
41 Letter to Judge Tucker dated June 27, 2018 by CATHOLIC SOCIAL SERVICES, SHARONELL FULTON, CECELIA PAUL, TONI LYNN SIMMS−BUSCH re NIFLA v. Becerra Supreme Court decision (Attachments: # 1 Supreme Court decision)(RIENZI, MARK) Modified on 6/29/2018 (tjd). (Entered: 06/27/2018)
42 Letter to Judge Tucker dated June 28, 2018 by CATHOLIC SOCIAL SERVICES, SHARONELL FULTON, CECELIA PAUL, TONI LYNN SIMMS−BUSCH re Janus v. American Federation of State, County, and Municipal Employees Council Supreme Court decision (Attachments: # 1 Supreme Court Opinion)(RIENZI, MARK) Modified on 7/2/2018 (tjd). (Entered: 06/28/2018)
43 NOTICE of Appearance by FRED T. MAGAZINER on behalf of PHILADELPHIA FAMILY PRIDE, SUPPORT CENTER FOR CHILD ADVOCATES with Certificate of Service(MAGAZINER, FRED) (Entered: 06/28/2018)
44 NOTICE of Appearance by JANE LOVITCH ISTVAN on behalf of CITY OF PHILADELPHIA, DEPARTMENT OF HUMAN SERVICES FOR THE CITY OF PHILADELPHIA, PHILADELPHIA COMMISSION ON HUMAN RELATIONS with Certificate of Service(ISTVAN, JANE) (Entered: 06/28/2018)
45 Proposed Findings of Fact and Conclusions of Law by CITY OF PHILADELPHIA, DEPARTMENT OF HUMAN SERVICES FOR THE CITY OF PHILADELPHIA, PHILADELPHIA COMMISSION ON HUMAN RELATIONS. Certificate of Service (EWING, ELEANOR) (Entered: 06/28/2018)
46 Proposed Findings of Fact and Conclusions of Law by CATHOLIC SOCIAL SERVICES, SHARONELL FULTON, CECELIA PAUL, TONI LYNN SIMMS−BUSCH. Certificate of Service (Attachments: # 1 Exhibit Supplemental Declaration of James Amato)(RIENZI, MARK) (Entered: 06/28/2018)
47 Letter to Judge Tucker dated June 29, 2018 by CITY OF PHILADELPHIA, DEPARTMENT OF HUMAN SERVICES FOR THE CITY OF PHILADELPHIA, PHILADELPHIA COMMISSION ON HUMAN RELATIONS Objecting to Supplemental Declaration (EWING, ELEANOR) Modified on 7/5/2018 (tjd). (Entered: 06/29/2018)
48 Memorandum of Law in Opposition re 14 MOTION to Intervene filed by CATHOLIC SOCIAL SERVICES, SHARONELL FULTON, CECELIA PAUL, TONI LYNN SIMMS−BUSCH. (RIENZI, MARK) Modified on 7/5/2018 (tjd). (Entered: 06/29/2018)

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07/10/2018 07/11/2018 07/12/2018 07/13/2018 07/13/2018
07/13/2018
07/13/2018 07/14/2018 07/16/2018 07/18/2018 07/18/2018 07/20/2018

49 Letter to Judge Tucker dated July 10, 2018 by CATHOLIC SOCIAL SERVICES, SHARONELL FULTON, CECELIA PAUL, TONI LYNN SIMMS−BUSCH (RIENZI, MARK) Modified on 7/13/2018 (tjd). (Entered: 07/10/2018)
50 Letter to Judge Tucker dated July 11, 2018 by CITY OF PHILADELPHIA, DEPARTMENT OF HUMAN SERVICES FOR THE CITY OF PHILADELPHIA, PHILADELPHIA COMMISSION ON HUMAN RELATIONS re 49 Notice (Other) (FIELD, BENJAMIN) Modified on 7/17/2018 (tjd). (Entered: 07/11/2018)
51 WAIVER OF SERVICE Returned Executed by CECELIA PAUL, SHARONELL FULTON, TONI LYNN SIMMS−BUSCH, CATHOLIC SOCIAL SERVICES. Waivers sent to All Defendants on 5/30/2018, answers due 7/30/2018. (WINDHAM, LORI) Modified on 7/16/2018 (tjd). (Entered: 07/12/2018)
52 MEMORANDUM FILED. SIGNED BY HONORABLE PETRESE B. TUCKER ON 07/13/2018. 07/13/2018 ENTERED AND COPIES MAILED AND E−MAILED.(dt) (Entered: 07/13/2018)
53 ORDER OF 7/13/18 THAT PLAINTIFF'S INJUNCTION MOTION IS DENIED. IT IS FURTHER ORDERED THAT DEFENDANTS CITY OF PHILADELPHIA, DEPARTMENT OF HUMAN SERVICES FOR THE CITY OF PHILADELPHIA, AND PHILADELPHIA COMMISSION ON HUMAN RELATIONS SHALL FILE AN ANSWER OR OTHERWISE RESPOND TO PLAINTIFFS' COMPLAINT (DOC. 1) NO LATER THAN TWENTY−ONE (21) DAYS FROM THE DATE OF THIS ORDER. SIGNED BY JUDGE PETRESE B. TUCKER. 7/13/18 ENTERED AND COPIES MAILED AND E−MAILED. (DT) (Entered: 07/13/2018)
54 NOTICE OF APPEAL as to 53 Order (Memorandum and/or Opinion), by CATHOLIC SOCIAL SERVICES, SHARONELL FULTON, CECELIA PAUL, TONI LYNN SIMMS−BUSCH. Filing fee $ 505, receipt number 0313−12924159. Copies to Judge, Clerk USCA, Appeals Clerk.**(FILED IN ERROR BY ATTY, SEE DOCUMENT 55 FOR CORRECT NOTICE OF APPEAL)** (WINDHAM, LORI) Modified on 7/17/2018 (tjd). (Entered: 07/13/2018)
55 NOTICE OF APPEAL as to 53 Order (Memorandum and/or Opinion), by CATHOLIC SOCIAL SERVICES, SHARONELL FULTON, CECELIA PAUL, TONI LYNN SIMMS−BUSCH. Filing fee $ 505, receipt number 0313−12924159. Copies to Judge, Clerk USCA, and Appeals Clerk. (RIENZI, MARK) Modified on 7/17/2018 (tjd). (Entered: 07/13/2018)
56 Emergency MOTION for Injunction pending appeal filed by CATHOLIC SOCIAL SERVICES, SHARONELL FULTON, CECELIA PAUL, TONI LYNN SIMMS−BUSCH. Brief. (Attachments: # 1 Brief in support of motion, # 2 Text of Proposed Order)(RIENZI, MARK) Modified on 7/18/2018 (tjd). (Entered: 07/14/2018)
57 NOTICE of Docketing Record on Appeal from USCA re 55 Notice of Appeal, filed by TONI LYNN SIMMS−BUSCH, CECELIA PAUL, CATHOLIC SOCIAL SERVICES, SHARONELL FULTON. USCA Case Number 18−2574 (dmc, ) Modified on 7/17/2018 (dmc, ). (Entered: 07/17/2018)
58 ORDER THAT DEFENDANTS SHALL FILE A RESPONSE TO PLAINTIFFS EMERGENCY MOTION FOR INJUNCTION PENDING APPEAL BY 7/23/18; ETC.. SIGNED BY HONORABLE PETRESE B. TUCKER ON 7/18/18. 7/18/18 ENTERED AND E−MAILED.(jl, ) (Entered: 07/18/2018)
59 ORDER THAT THE MOTION OF THE SUPPORT CENTER FOR CHILD ADVOCATES AND PHILADELPHIA FAMILY PRIDE TO INTERVENE AS DEFENDANTS IS STAYED; ETC.. SIGNED BY HONORABLE PETRESE B. TUCKER ON 7/18/18. 7/18/18 ENTERED AND E−MAILED.(jl, ) (Entered: 07/18/2018)
60 MOTION for Reconsideration re 59 Order or, Alternatively, for Indicative Ruling pursuant to FRCP 62.1 filed by PHILADELPHIA FAMILY PRIDE, SUPPORT CENTER FOR CHILD ADVOCATES.certificate of service. (Attachments: # 1 Text of Proposed Order, # 2 Text of Proposed Order)(ROPER, MARY) (Entered: 07/20/2018)

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07/23/2018
07/24/2018 07/25/2018 07/26/2018 07/26/2018
07/30/2018 07/31/2018 08/01/2018
08/13/2018 05/14/2019 05/15/2019

61 Memorandum of Law in Opposition re 56 Emergency MOTION to Enjoin Defendants, pending appeal with Proposed Order and Certification of Service filed by CITY OF PHILADELPHIA, DEPARTMENT OF HUMAN SERVICES FOR THE CITY OF PHILADELPHIA, PHILADELPHIA COMMISSION ON HUMAN RELATIONS. (Attachments: # 1 Text of Proposed Order)(FIELD, BENJAMIN) Modified on 7/26/2018 (tjd). (Entered: 07/23/2018)
63 ORDER THAT PLFFS' EMERGENCY MOTION FOR INJUNCTION PENDING APPEAL (ECF NO. 56), IS DENIED. SIGNED BY HONORABLE PETRESE B. TUCKER ON 7/24/18.7/25/18 ENTERED AND COPIES E−MAILED.(kw, ) (Entered: 07/25/2018)
62 Letter to Judge Tucker dated July 25, 2018 filed by CITY OF PHILADELPHIA, DEPARTMENT OF HUMAN SERVICES FOR THE CITY OF PHILADELPHIA, PHILADELPHIA COMMISSION ON HUMAN RELATIONS.(FIELD, BENJAMIN) Modified on 7/25/2018 (tjd). (Entered: 07/25/2018)
64 ORDER THAT DEFTS' DEADLINE FOR FILING AN ANSWER OR RESPONSE TO PLFFS' COMPLAINT (DOC. 1) IS CONTINUED UNTIL FURTHER ORDER OF THE COURT. SIGNED BY HONORABLE PETRESE B. TUCKER ON 7/26/18. 7/27/18 ENTERED AND COPIES E−MAILED.(kw, ) (Entered: 07/27/2018)
65 ORDER THAT TO THE EXENT THAT PARTIES WISH TO RESPOND TO THE MOTION FOR RECONSIDERATION, (DOC. 60), PARTIES SHALL RESPOND ON OR BEFORE 7/30/2018. IT IS FURTHER ORDERED THAT NO REPLY BRIEFS IN CONNECTION WITH THIS MOTION FOR RECONSIDERATION SHALL BE FILED WITHOUT LEAVE OF COURT. SIGNED BY HONORABLE PETRESE B. TUCKER ON 7/26/18. 7/27/18 ENTERED AND COPIES E−MAILED.(kw, ) (Entered: 07/27/2018)
66 RESPONSE in Opposition re 60 MOTION for Reconsideration re 59 Order or, Alternatively, for Indicative Ruling pursuant to FRCP 62.1 filed by CATHOLIC SOCIAL SERVICES, SHARONELL FULTON, CECELIA PAUL, TONI LYNN SIMMS−BUSCH. (WINDHAM, LORI) (Entered: 07/30/2018)
67 NOTICE of Appearance by MICHAEL WU−KUNG PFAUTZ on behalf of CITY OF PHILADELPHIA, DEPARTMENT OF HUMAN SERVICES FOR THE CITY OF PHILADELPHIA, PHILADELPHIA COMMISSION ON HUMAN RELATIONS with Certificate of Service(PFAUTZ, MICHAEL) (Entered: 07/31/2018)
68 ORDER THAT PROPOSED INTERVENORS' MOTION FOR RECONSIDERATION OF THE COURT'S ORDER STAYING THE MOTION FOR LEAVE TO INTERVENE OR, IN THE ALTERNATIVE, THAT THE COURT AMEND ITS ORDER TO INCLUDE AN INDICATIVE RULING PURSUANT TO F.R.C.P. 62.1 IS GRANTED, ETC. SIGNED BY HONORABLE PETRESE B. TUCKER ON 8/1/18.8/2/18 ENTERED AND COPIES E−MAILED.(kw, ) (Entered: 08/02/2018)
69 ORDER THAT PROPOSED INTERVENORS' MOTION TO INTERVENE IS GRANTED & THE CLERK OF COURT SHALL LIST SUPPORT CENTER FOR CHILD ADVOCATES AND PHILADELPHIA FAMILY PRIDE AS DEFTS IN THIS MATTER. SIGNED BY HONORABLE PETRESE B. TUCKER ON 8/13/18.8/14/18 ENTERED AND COPIES E−MAILED.(kw, ) (Entered: 08/14/2018)
70 MOTION to Stay filed by CATHOLIC SOCIAL SERVICES, SHARONELL FULTON, CECELIA PAUL, TONI LYNN SIMMS−BUSCH.Certificate of Service.(RIENZI, MARK) (Entered: 05/14/2019)
71 ORDER THAT PLFFS' UNOPPOSED MOTION FOR STAY DATED 5/14/2019 IS GRANTED. ALL FURTHER PROCEEDINGS IN THIS CASE ARE STAYED PENDING THE DISPOSITION OF PLFFS' PETITION FOR CERTIORARI TO THE SUPREME COURT. SIGNED BY HONORABLE PETRESE B. TUCKER ON 5/15/19.5/16/19 ENTERED AND COPIES E−MAILED.(kw, ) (Entered: 05/16/2019)

 
 Case 2:18-cv-02075-PBT Document 1 Filed 05/17/18 Page 1 of 40

UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF PENNSYLVANIA

SHARONELL FULTON, CECELIA PAUL, TONI LYNN SIMMS-BUSCH, and CATHOLIC SOCIAL SERVICES,

Plaintiffs,

Civil No. _________

v.

COMPLAINT

CITY OF PHILADELPHIA, DEPARTMENT OF HUMAN SERVICES FOR THE CITY OF PHILADELPHIA, and PHILADELPHIA COMMISSION ON HUMAN RELATIONS,

Defendants.

INTRODUCTION 1. Catholic Social Services exists to serve those in need, and it wants to continue serving foster children in Philadelphia. Despite a foster care crisis and a need for more foster homes, the City of Philadelphia has decided to cut off foster placements for Catholic Social Services and prioritize political grandstanding over the needs of children. 2. Unsurprisingly, the City’s actions are creating a severe human cost. Available foster homes are sitting empty. Numerous foster parents like Cecelia Paul have homes that are now vacant because the City will no longer allow Catholic Social Services to place children with these loving families. Other foster parents, such as Sharonell Fulton, may soon lose their placements, meaning that they will
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no longer be able to care for children who rely on their foster families to help with extensive medical care for their special needs. Other foster parents, such as Toni Simms-Busch, risk losing the opportunity to foster additional children, including biological siblings of her current foster children, in the future. And many foster children will face even greater obstacles to finding a safe home. These consequences are severe, unnecessary, and illegal under state and federal law. And they are the direct consequences of the City’s actions.
3. On an average day, Catholic Social Services serves more than 120 children in foster care, and it supervises around 100 different foster homes. Through its combined programs, Catholic Social Services served more than 2,200 different atrisk children in Philadelphia last year. For decades, Catholic Social Services has partnered with the City to place foster children in stable, loving homes. It has a proven track record of compassion, quality, and success.
4. Catholic Social Services works with foster parents like Ms. Fulton, who has cared for children with severe medical problems and trauma from past abuse. Catholic Social Services works with parents like Ms. Simms-Busch, who is fostering two biological siblings and is very open to fostering again in the future, including if additional biological siblings of her children went into foster care. Catholic Social Services works with parents like Ms. Paul, who, in her 40-plus years of foster work, has fostered more than 130 children, adopted six children, and received a Foster Parent of the Year award from the City.
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5. The City is penalizing Catholic Social Services, in violation of its contract and state and federal law, because the agency has Catholic beliefs about same-sex marriage. Catholic Social Services serves and places children regardless of their race, color, sex, sexual orientation, gender identity, religion, national origin, ancestry, age, disability, source of income, familial status, genetic information, or sexual violence victim status. Even though no LGBT couple has filed a complaint against Catholic Social Services, and the agency would not stand in the way of any couple who wished to foster a child in need, the City has decided to penalize the agency because the City disagrees with its religious beliefs. But even more importantly, the City is penalizing both the foster parents who wish to continue working with Catholic Social Services and the children they would serve.
6. Philadelphia’s actions discriminate against Plaintiffs for their religious beliefs and practices, constitute a breach of contract, unlawfully try to coerce them to speak contrary to their religious beliefs, and restrict Plaintiffs’ religious exercise in violation of state law and the Pennsylvania and U.S. Constitutions.
IDENTIFICATION OF PARTIES 7. Plaintiff Sharonell Fulton is a foster parent who works with Catholic Social Services. She has fostered more than 40 children over 25-plus years as a foster parent. She has cared for children with significant medical needs and is currently caring for two special needs foster children. 8. Ms. Fulton could not provide the extensive care that these special needs children require without the support she receives from Catholic Social Services.
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Catholic Social Services has provided Ms. Fulton with training, resources, support, and professional guidance as to how to best care for special needs children. She has been able to call social workers at any hour and receive an answer from someone she knew and trusted. These social workers have become like family and have shown great love and care to her foster children. By contrast, Ms. Fulton previously received training from a government agency, and has noted the stark difference between that agency’s treatment of her and Catholic Social Services’ care and compassion. She is aware that other foster parents have been unsatisfied with the support they receive from other foster agencies. Ms. Fulton believes that she would not receive the kind of support she needs to serve children with serious medical problems if she were with another agency. If the City terminates its contract with Catholic Social Services, or refuses to renew the contract in June, Ms. Fulton’s two current foster children will be immediately transferred away. Because of their extensive medical needs, she anticipates these children will have a very difficult time being placed, and it is very unlikely they will be placed with a foster parent that has the same capacity and training as Ms. Fulton to address these special needs.
9. Ms. Fulton shares the religious beliefs of Catholic Social Services. As an African American woman, Ms. Fulton has experienced discrimination in her life. It is insulting and hurtful for her to observe the government of the city in which she lives needlessly denigrate and publicly condemn her own religious beliefs in such a discriminatory fashion.
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10. Plaintiff Cecelia Paul is a foster parent who has worked with Catholic Social Services for 46 years and who has fostered 133 children. Mrs. Paul was honored by the City as one of its Foster Parents of the Year for her excellent care. Caring for children in need is what gives life meaning for Mrs. Paul. She first began caring for children when she worked as a nurse. Her religious beliefs inspired her to make serving children her life’s work. These religious beliefs also inspired Mrs. Paul to work with Catholic Social Services, and the social workers at this agency have become like family to Mrs. Paul. Mrs. Paul trusts them, relies on them, and she cannot imagine starting from scratch and fostering children without them. But because the City is no longer referring children to families who work with Catholic Social Services, as of April Mrs. Paul is no longer caring for children in need. This has left a void in Mrs. Paul’s life and has left her unable to fulfill her religious commitment to give of herself and show love to those most in need. Mrs. Paul’s home will remain empty of children as long as the City continues refusing to refer foster children to Catholic Social Services.
11. Plaintiff Toni Lynn Simms-Busch previously worked as a foster care social worker with a private agency, and then later as a child advocate social worker who spent four years working at the Defender Association of Philadelphia. Ms. SimmsBusch obtained her bachelor’s degree in forensic psychology from Chatham University in Pittsburgh. In her prior role as a child advocate social worker with the City of Philadelphia, Ms. Simms-Busch interacted with all the foster agencies in the City. She observed some to offer high-quality services, and others at the other end of
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the spectrum. She observed that Catholic Social Services consistently was among the best of any foster agency in terms of quality of services the provided, and they operated with the highest level of integrity, professionalism, responsiveness, and care.
12. Ms. Simms-Busch is now a foster parent herself, caring for two very young foster children who are biological siblings. Ms. Simms-Busch chose to work with Catholic Social Services because she observed their high-level care in the past, as well as because of her desire to raise her family with an organization that shared her religious beliefs. Ms. Simms-Busch is inspired by her religious beliefs to serve children, which is why she found work as a child advocate so rewarding. She is continuing that religiously-motivated practice of serving vulnerable children now as a foster mother. Ms. Simms-Busch relies heavily on the trusted social workers she interacts with at Catholic Social Services. Fostering is often a very emotionally exhausting process, and she could not imagine continuing on this journey without the support she receives from Catholic Social Services. In her interactions with other agencies, Ms. Simms-Busch has not received this same level of personal care and loving encouragement. It is possible that in the future, a biological sibling of her foster children would need foster care, and Ms. Simms-Busch would be very open to fostering this child if she could work with Catholic Social Services. Ms. Simms-Busch is very open to fostering other children in need in the future as well. But if Catholic Social Services were forced to close its program, Ms. Simms-Busch thinks it is highly unlikely that she would be able to continue fostering.
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13. Plaintiff Catholic Social Services is a non-profit religious corporation under the auspices of the Archdiocese of Philadelphia and party to a foster services contract with Defendant Department of Human Services. Catholic Social Services’ foster care program currently cares for 127 children daily whom it has placed in foster arrangements through referrals from the City. Thanks to its work, last year 132 of its graduates went on to receive high school diplomas. Catholic Social Services prioritizes permanency, and the statistics demonstrate its success. Across its programs, about 50 children per year achieve permanency either by returning to their families or moving to adoption with their foster families.
14. Catholic Social Services and the Archdiocese of Philadelphia have provided care for needy children in Pennsylvania for over a century. In 1916, the Catholic Children’s Bureau was established and staffed by Missionary Sisters of the Blessed Trinity, early Catholic pioneers in social work. Their work continues today through the dedicated efforts of Catholic Social Services’ foster care program. This ongoing religious mission motivates Catholic Social Services and its staff to provide exemplary services to children and families in Philadelphia.
15. Catholic Social Services exists to transform lives and bring about a just and compassionate society where every individual is valued, families are healthy and strong, and communities are united in their commitment to the good of all. Catholic Social Services works towards a world touched by God’s mercy: where poverty and need are alleviated and all people share justly in the blessings of creation. Catholic Social Services is dedicated to serving others in a spirit of humility and genuine
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concern for the well-being of its neighbors and affirms the God-given dignity and worth of every person.
16. Catholic Social Services exercises its faith and carries out this religious mission through its foster work. Care for needy children and the provision of foster care services is an integral, fundamental, and central part of Plaintiffs’ religious exercise. Providing these services in a manner consistent with Catholic teaching is part of its religious character and affiliation.
17. Catholic Social Services also provides important ancillary services to children and families. For example, Catholic Social Services, St. Gabriel’s Hall, is certified as a Sanctuary Model of Trauma-Informed Care provider—a best practice standard now hailed nationwide. Catholic Social Services also provides educational programming via state-licensed schools at St. Gabriel’s Hall, DeLaSalle Vocational School and St. Francis Homes. Last year, through Catholic Social Services programs, 132 graduates received high school diplomas. Catholic Social Services’ Youth Division, including St. Gabriel’s System and St. Francis & St. Vincent Homes, served 1,544 youth in placement, and approximately 1,400 families per year across all its child welfare and juvenile justice programs last year. That number includes over 120 children whom Catholic Social Services has, on an average day, placed in foster arrangements through referrals from the City.
18. Defendant City of Philadelphia is a municipality organized pursuant to Section 1 of Article XV of the Constitution and the Act of the General Assembly, approved April 21, 1949, P.L. 665, of the Commonwealth of Pennsylvania.
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19. Defendant Department of Human Services is an agency of the City of Philadelphia and party to a foster services contract (“the Contract”) with Plaintiff Catholic Social Services. The Contract is attached as Exhibit A.
20. Defendant Philadelphia Commission on Human Relations is an agency of the City of Philadelphia.
JURISDICTION AND VENUE 21. This action arises under the Constitution and laws of the United States. The Court has subject matter jurisdiction under 28 U.S.C. §§ 1331 and 1343. 22. The Court has authority to issue the declaratory and injunctive relief sought under 28 U.S.C. §§ 2201 and 2202. 23. Venue lies in this district under 28 U.S.C. § 1391(b)(1) and (2).
FACTUAL ALLEGATIONS Foster Care Under Pennsylvania and Federal Law 24. More than 5,000 children are in Philadelphia’s foster care system, and experts have recognized that the City faces a “crisis” because of “the lack of qualified foster parents and other placement options for the increasing number of children in care.”1 Philadelphia relies upon state-licensed foster care agencies to help make up the shortfall. 25. In Pennsylvania, standards for foster care providers are set out by state law. 55 Pa. Code § 3700. The Commonwealth provides funding to municipalities for 1 David R. Fair, Partners for Philadelphia Families Testimony to Philadelphia City Council, Turning Points for Children (June 14, 2016), www.turningpointsforchildren.org/news/228-partners-for-philadelphia-familiestestimony
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foster care, and runs the Statewide Adoption Network (SWAN), under which foster care agencies may be licensed to provide adoption services to foster children.
26. Pennsylvania sets the standards which foster agencies use to determine whether a particular foster family should be certified. Those standards include consideration of “existing family relationships” and the “[a]bility of the applicant to work in partnership with” the foster care agency. 55 Pa. Code § 3700.64.
27. Pennsylvania laws permit religious foster care agencies to operate in a manner consistent with their faith.
28. The City relies upon state and federal funds, including Temporary Assistance to Needy Families (TANF) block grants, to administer its foster care program. This federal funding includes requirements that states and local government bodies not discriminate against religious foster care agencies based upon their religious beliefs. See, e.g., 42 U.S.C. § 604a(c) (“neither the Federal Government nor a State receiving funds under such programs shall discriminate against an organization which is or applies to be a contractor to provide assistance, or which accepts certificates, vouchers, or other forms of disbursement, on the basis that the organization has a religious character.”) 45 C.F.R. § 87.3(a) (“Neither the HHS awarding agency, nor any State or local government and other pass-through entity receiving funds under any HHS awarding agency program shall, in the selection of service providers, discriminate for or against an organization on the basis of the organization’s religious character or affiliation.”).
Philadelphia’s Foster Care Program
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29. In Philadelphia, there are 28 state-licensed agencies who partner with the city to provide foster services. Of those agencies, eight obtained additional competitive contracts with the City to also serve as a Community Umbrella Agency (CUA), an entity that works to try to help at-risk children stay in their homes where such an option would be possible and safe for the child. Of these select agencies, the City ranked Catholic Social Services as the second highest of all agencies. This demonstrates Catholic Social Services’ track record of providing both quality and value to the City's residents.
30. When at-risk children are not able to remain in their family homes, the City refers the child to be placed in foster care. The City is the only source of foster care referrals, so any Philadelphia-area foster agency who does not receive referrals from this source cannot place new foster children with families and will quickly lose the ability to serve any foster children at all.
31. The City has provided referrals to Catholic Social Services on a regular basis for many years and requires Catholic Social Services to report open spaces weekly so that any openings in foster homes may be filled promptly. This has been the City’s consistent practice. The City has never before suspended referrals to Catholic Social Services when homes were available, and, upon information and belief, the City’s longstanding practice is to provide referrals to all approved foster care agencies in the City with capacity to place children on a consistent and continuing basis.
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32. State-licensed agencies in Philadelphia place children with foster families who have already undergone extensive interviews and home studies by social workers at the agency. The agency makes a determination that a particular foster family would be an appropriate family to care for foster children. After these interviews, home studies, and recommendations, an agency may certify that a foster family is approved to care for foster children.
33. State law does not prohibit foster agencies from declining to perform a home study, nor from referring families to another licensed agency to perform a home study. State law also permits waivers of provisions of the laws governing foster care agencies, so long as the waiver “[d]oes not jeopardize receipt of Federal monies.” 55 Pa. Code § 3700.5.
34. After an agency licensed by the Commonwealth has taken the steps prescribed by state law, it may place a foster child referred to it with a certified foster family. The City provides per diem payments from a combination of federal, state, and city funds. That funding is provided to foster care agencies only after an agency has accepted the referral of a child and is supervising that placement with a certified foster family.
35. A foster agency provides ongoing training and support and works with the assigned CUA case manager to coordinate services to the foster family, birth family and child in order to achieve a positive outcome. Foster parents are needed not only to care for children, but to provide mentoring to the birth family and support the relationship between the child and the birth family. This collaborative approach
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assesses the continued appropriateness of temporary placement and explores options for permanency through return to the birth family, placement with kin, or adoption.
Catholic Social Services’ Foster Care Program 36. Catholic Social Services shares the City’s goal of working to fill the shortage of safe foster homes for these vulnerable kids. On an average day, Catholic Social Services’ foster care program cares for over 120 children who are placed with about 100 different foster families that Catholic Social Services supervises. Catholic Social Services is able to recruit many foster families, such as Ms. Simms-Busch, Ms. Fulton, and Mrs. Paul, who would not otherwise feel able to foster or adopt children. Of the select agencies who obtained additional CUA contracts, the City ranked Catholic Social Services as the second highest of all these agencies. 37. Catholic Social Services serves and places children regardless of their race, color, sex, sexual orientation, gender identity, religion, national origin, ancestry, age, disability, source of income, familial status, genetic information, or sexual violence victim status. 38. Catholic Social Services shares the religious beliefs and teachings of the Catholic Church regarding same-sex marriage. But Catholic Social Services would never stop a family who wants to foster from having the opportunity to complete the application and home study process, either through Catholic Social Services or another agency. If Catholic Social Services were ever unable to perform in-depth home assessments and make reports and written certifications to the State for any
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reason, including consistency with religious beliefs and mission of Catholic Social Services, then it would refer the potential foster parent to one of 26 nearby agencies who can better serve their needs. Four agencies are located within just two miles of Catholic Social Services’ downtown office.
39. On information and belief, Catholic Social Services has never had a samesex couple request that the agency perform a home study. No same-sex couples have been denied the ability to become foster parents because of Catholic Social Services, and no same-sex couples have filed complaints against Catholic Social Services regarding its foster care operations.
40. As long as staff at Catholic Social Services can remember, and for at least 50 years, the agency has provided foster care services to the City pursuant to a contract, which is renewed annually. In reliance upon that contract, Catholic Social Services has hired 15 staff members who work exclusively on that contract, has budgeted and raised funds designed to supplement City funding on that contract, and has taken other concrete steps in expectation that it will continue to receive referrals and be able to perform its duties under the Contract. Catholic Social Services offers a significant subsidy to the City by supplementing City foster funds with private donations and volunteer hours to cover costs that City funding cannot.
41. Although Catholic Social Services provides home studies and hopes to continue doing so, there is no contractual or other requirement of a free-standing duty to offer certification services to prospective foster families. Catholic Social
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Services is not obligated to provide home studies to the general public under the Contract.
42. The City has been aware of Catholic Social Services’ religious beliefs for years. For example, the City has repeatedly accepted waiver requests from Catholic Social Services pursuant to Phila. Code § 17-1904. That provision permits the City to waive the obligation for contractors to provide benefits to same-sex spouses of employees where “the contractor certifies, and the City finds, that (a) the contractor is operated, supervised, or controlled by a bona fide religious institution or organization for charitable purposes, and (b) compliance with the provisions of this Chapter would conflict with the beliefs of the religion with which the contracting organization is identified.” The City’s acceptance of that certification demonstrates its knowledge of Catholic Social Services’ position regarding same-sex marriage. The Contract has a non-discrimination provision that has been in place for many years without material alteration, and during that time, the City has never investigated Catholic Social Services, penalized Catholic Social Services, nor otherwise indicated in any way that Catholic Social Services would be in breach of that contract if it did not perform home studies, nor if it referred a couple to another agency for home studies due to consistency with its religious mission.
The City Targets Catholic Social Services and Breaches Its Contract 46. Despite this long history of serving the City and its residents, on March 15, 2018, Catholic Social Services was informed via a news article that the City was suspending foster care referrals to the agency. That same day, the Philadelphia City
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Council passed a resolution alleging that some foster services providers “have policies that prohibit the placement of children with LGBTQ people based on religious principles” and calling for an investigation.2 A local news agency quoted the Mayor saying, “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.”3
47. The apparent impetus for the City’s actions was a newspaper article published two days earlier. The article discussed the case of a different foster care provider which was facing a complaint from a same-sex couple. No such complaint has been made against Catholic Social Services. The article also discussed Catholic Social Services’ religious beliefs.
48. After the City passed its resolution, Catholic Social Services received a letter from the Philadelphia Human Relations Commission demanding information about the policies and practices of Catholic Social Services. A true and correct copy of the letter is attached as Exhibit C.
49. At no time has the Human Relations Commission received a formal complaint against Catholic Social Services, notified Catholic Social Services of such a complaint as required by law, or otherwise taken the steps required by law to open a formal proceeding against Catholic Social Services.

2

Exhibit

B,

Resolution

No.

180252,

http://philly.councilmatic.org/legislation/3378655.

3 Tom MacDonald, Philly halts foster placements with 2 faith-based agencies

shutting out LGBT couples, WHYY, Mar. 16, 2018, https://whyy.org/articles/philly-

halts-foster-placements-2-faith-based-agencies-shutting-lgbt-couples/.

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50. Upon information and belief, other religious groups who contract with the City and who have different religious beliefs and practices regarding same-sex marriage have not received such letters and the City continues performance of those contracts.
51. In its letter, the City also indicated it suspected that Catholic Social Services was in breach of its contract. But Catholic Social Services did not receive a suspension notice and was not given an opportunity to cure. The City’s contract with Catholic Social Services states under the relevant nondiscrimination Paragraph 15.1 that the City may “suspend or terminate” its contract with Catholic Social Services only “[i]n the event of any breach of this Section 15.1.” But the City has never set forth any clear basis for breach of contract prior to engaging in suspending additional referrals.
52. Nor has the City provided the notice required under the contract prior to exercising its remedies. See Section 12.2.
53. As such, the City is in breach of its contract with Catholic Social Services by failing to perform and for preventing Catholic Social Services from continuing to perform without any justification.
54. On March 27, 2018, Staci Boyd, the Operations Director at the Department of Human Services, sent an email to other foster agencies in Philadelphia forbidding them from referring any additional foster intakes to Catholic Social Services. A copy of that email is attached as Exhibit D.
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55. Provision of referrals is necessary for performance and the receipt of any payment under the Contract. Because the City is the sole source of foster care referrals, without such referrals, Catholic Social Services is unable to fully perform its duties under the Contract and, as foster children return to their birth families or other placements, will eventually be unable to perform any duties under the contract.
56. Catholic Social Services has not breached its contract or otherwise acted unlawfully.
57. Catholic Social Services informed the City it was in breach, but the City has continued to suspend referrals and impede Catholic Social Services’ ability to perform under its contract without clear justification.
58. Catholic Social Services’ foster services do not constitute a “public accommodation” under the City’s Fair Practices Ordinance, and therefore it cannot have violated the contract provision relating to that ordinance.
59. Catholic Social Services is a private, religious charity. It does not offer, sell, or make available its services to the public that entail supervision of a child placed with a certified foster family. Phila., Pa., Admin. Code § 9-1102(1)(w). These services are only available to at-risk children who have been removed by the state and are in need of a loving home, and Catholic Social Services serves any child who is referred to them. The City only pays Catholic Social Services a per diem for these supervisory services, and the City is not contracted to compensate Catholic Social
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Services for anything else related to the provision of foster care, including home studies and assessments of potential foster families.
60. No individual or couple has alleged that Catholic Social Services has denied or interfered with the public accommodations opportunities of an individual. Nor could they, because Catholic Social Services is not a place of public accommodation, no allegation has been made that Catholic Social Services prevented anyone from receiving relevant city services, and Catholic Social Services has not prevented any child from being placed in a family.
61. Upon information and belief, the City has never before interpreted and applied its contracts or non-discrimination ordinances in this manner. The novel and inconsistent application demonstrates an attempt to target and penalize a particular set of religious beliefs and practices.
62. The City has targeted Catholic Social Services because of its religious beliefs. City officials have been open about their disagreement with Catholic teaching on marriage and their personal animosity toward the Archdiocese. Local media has chronicled Mayor Kenney’s public statements criticizing the Archdiocese and Archbishop. See, e.g., Patrick Kerkstra, Jim Kenney’s Long War with the Archdiocese, Philadelphia, July 9, 2015, (compiling tweets);4 David O’Reilly, Chaput edict draws mixed reviews; Kenney calls it “not Christian”, Philadelphia Inquirer,
4 https://www.phillymag.com/citified/2015/07/09/jim-kenney-catholic-archdiocesecharles-chaput/.
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July 6, 2016 (Mayor Kenney, “who was raised Catholic, has often been sharply critical of [Archbishop] Chaput’s conservative stances on matters of faith.”).5
63. Plaintiffs informed the Commission on April 18, 2018, that Plaintiffs’ actions were lawful, the Defendants’ actions were unlawful, and requested that Defendants cease their unlawful behavior and resume normal operations under the Contract. A true and correct copy of that letter is attached as Exhibit E.
64. On May 9, Plaintiffs’ counsel received a response from the Commission, dated May 7, defending Defendants’ actions and stating that Plaintiffs would face subpoenas and further adverse actions under the Contract 10 days after the date of the letter, which Plaintiffs calculate to be May 17. A true and correct copy of that letter is attached as Exhibit F.
65. On May 10, Plaintiffs requested a meeting with the Commission to attempt to resolve the issues prior to May 17, or in the alternative, a delay of that timeframe to allow for further discussion. The Commission has yet to respond to that request.
66. Plaintiffs’ counsel received a second letter dated May 7, this one from the City’s law department. A true and correct copy of that letter is attached as Exhibit G.
67. In that letter, the City confirmed that its purpose is to ensure that Catholic Social Services cannot “inform a qualified family” that they are unable to complete a home study and refer that family elsewhere. The City made it clear that same-sex marriage is a “value that must be embodied in our contractual relationships.” 5 http://www.philly.com/philly/news/20160707_Chaput_edict_draws_mixed_ reviews__Kenney_calls_it__not_Christian_.html.
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68. The City also indicated that it has the power to grant exemptions from certain requirements. It highlighted contract language that states that in some circumstances, “an exception is granted by the Commissioner . . . in his/her sole discretion.” It also stated that it had recently granted an “exception” from the cessation of referrals “in that instance” in order to allow siblings to be placed together. However, as to the provision of home studies and other support for samesex couples, the City stated: “the Commissioner has no intention of granting an exception.”
69. The City also stated that it believes Catholic Social Services is obligated to provide home studies to same-sex couples, and it said that “any further contracts with CSS will be explicit in that regard.” This acknowledges that the City’s current contract with Catholic Social Services is not currently explicit in this regard.
70. The City indicated it would not renew the Contract after its expiration on June 30th, and would begin a transition plan, unless Catholic Social Services agreed to engage in the City’s preferred form of speech and provide home studies and support services to same-sex couples.
71. In that letter, the City also threatened to terminate the Contract for convenience.
The City’s Unlawful Actions Harm Catholic Social Services and the Children of Philadelphia
72. The City’s unlawful actions have real-world consequences. After the City informed Catholic Social Services that it would not receive any new referrals, Catholic Social Services received a request from another agency regarding a child
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who had just been taken into foster care. Despite the City’s announced ban, the agency wished to place that child with his siblings, who had been placed with a family through Catholic Social Services. Responding to an urgent need, Catholic Social Services immediately agreed to exercise its role as a state-licensed foster care agency to place the child with his siblings. Catholic Social Services informed DHS of the placement that same day. That placement was made in accordance with best practices and law, which favor family placement of siblings wherever possible.
73. Had DHS successfully implemented its prohibition on referrals to Catholic Social Services, this child could not have been placed with his siblings. Immediately after this successful placement of the child, however, DHS instead doubled down on its prohibition, sending a message to its referral partners regarding Catholic Social Services and Bethany Christian Services, stating that “NO referrals are sent to these two providers effective immediately,” and demanding that all its partners affirm this directive in writing. Weeks later, after Catholic Social Services pointed out to the City that its actions suggested it was not acting in the best interests of the child, the City claimed that it granted an exception “in that instance.”
74. If a similar situation happens in the future, the City’s current policy means that the child would not be automatically referred to Catholic Social Services for placement in a home with his or her siblings. Catholic Social Services, and the children it hopes to serve, are at the mercy of the City.
75. Also after the City’s unlawful suspension, a court order was necessary to ensure that a child could be reunited with her former foster mother, who is a
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certified foster parent working with Catholic Social Services. A foster family with Catholic Social Services had formerly cared for the girl, and the foster mother came to court to state her willingness to foster the girl once again. The court determined that it was in the child’s best interests to be placed with this family, but it was only after a direct court order and a personal appeal from Catholic Social Services that the City took the obvious—and right—step of placing the child with her former foster mother.
76. The City has threatened to terminate the Contract “for convenience.” If such a termination happened abruptly, then the City would be forced to remove foster children from their current placements, disrupting their lives at a sensitive and difficult time, and to find new homes for those children on short notice and during a time when the City is in a crisis because of the lack of available foster parents. The results would be devastating.
77. Catholic Social Services continues to work with the families it has certified and to serve the children in their care. It is aware of at least eleven vacancies with foster families who are willing and able to take in additional children. However, due to the City’s unlawful suspension, Catholic Social Services is unable to place children with those families. Mrs. Paul is one of these parents who stands ready and willing to care for more children, and she is unable to do so because of the City’s current policy. Her home is currently empty. And other foster parents, like Ms. Fulton and Ms. Simms-Busch, fear they will be deprived of the ability to continue fostering children in the future. If the contract is terminated or not renewed on
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June 30, then the children currently in placement may be removed from their homes.
78. Catholic Social Services remains willing and able to continue its ministry serving children in Philadelphia. It wants to help alleviate the foster care crisis in Philadelphia, and it has not and will not prevent any qualified family from becoming a foster parent, be it through Catholic Social Services or a referral to another agency. But because of the City’s actions, Catholic Social Services is unable to place foster children with families. Its 100-year-old ministry to at-risk children is in jeopardy.
CLAIMS Count I Violation of Religious Freedom Protection Act 71 Pa. Stat. Ann. § 2404 79. Plaintiffs incorporate by reference all preceding paragraphs. 80. Defendants are an “agency” within the meaning of 71 Pa. Stat. Ann. §§ 2403-04. 81. Defendants’ actions have substantially burdened Plaintiffs’ religious exercise. 82. Defendants do not have a compelling reason for their actions, and Defendants have not selected the means least restrictive of religious exercise in order to further their interests. 83. Plaintiffs will provide Defendants with notice of the substantial burden forthwith. A full 30-day delay is not feasible because the exercise of government
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authority in the form of further adverse action in its contract with the City, as well as the unlawful use of subpoena power against the Plaintiffs, is imminent. On May 7, in letters which were mailed and thus were not received by Plaintiffs until later that week, Defendants threatened adverse contract actions against Plaintiffs, including immediate termination for convenience, and threatened Plaintiffs with unlawful and unjustified subpoenas in 10 days. Defendants’ threats of imminent unlawful action make formal notice 30 days in advance impracticable.
84. The City has constructive notice of this action due to the Plaintiffs’ public statements and the religious freedom arguments asserted in their letter to the Commission on April 18, 2018.
85. Absent injunctive and declaratory relief against defendants, Plaintiffs are and will continue to be irreparably harmed.
Count II 42 U.S.C. § 1983 Violation of the First Amendment to the U.S. Constitution Free Exercise Clause
Not Neutral 86. Plaintiffs incorporate by reference all preceding paragraphs. 87. “[A] law targeting religious beliefs as such is never permissible.” Trinity Lutheran Church of Columbia, Inc. v. Comer, 137 S. Ct. 2012, 2024 n.4 (2017) (quoting Church of the Lukumi Babalu Aye, Inc. v. City of Hialeah, 508 U.S. 520, 533 (1993)). 88. By suspending their contract with Plaintiffs, Defendants have targeted their religious beliefs and practices.
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89. The public statements of Defendants’ and their officials demonstrate that hostility toward Plaintiffs and their religious beliefs was a motivation for Defendants’ actions.
90. Defendants’ laws and policies have not been evenly enforced, demonstrating that the current attempt at enforcement is designed to target particular religious beliefs and practices.
91. Defendants do not have a compelling reason for their actions, and Defendants have not selected the means least restrictive of religious exercise in order to further their interests.
92. Absent injunctive and declaratory relief against Defendants, Plaintiffs are and will continue to be irreparably harmed.
Count III 42 U.S.C. § 1983 Violation of the First Amendment to the U.S. Constitution Free Exercise Clause Not Generally Applicable 93. Plaintiffs incorporate by reference all preceding paragraphs. 94. “[L]aws burdening religious practice must be of general applicability.” Lukumi, 508 U.S. at 542. 95. Defendants’ laws and policies have not been evenly enforced, demonstrating that the current attempt at enforcement is designed to target particular religious beliefs and practices. 96. Defendants have never enforced their laws, policies, and contract provisions in the manner they are currently being enforced against Plaintiffs.
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97. The public statements of Defendants and their officials demonstrate that hostility toward Plaintiffs and their religious beliefs was a motivation for Defendants’ actions.
98. Defendants concede that they can and have made exceptions to their policies in some instances.
99. Defendants do not have a compelling reason for their actions, and Defendants have not selected the means least restrictive of religious exercise in order to further their interests.
100. Absent injunctive and declaratory relief against Defendants, Plaintiffs are and will continue to be irreparably harmed.
Count IV 42 U.S.C. § 1983 Violation of the First Amendment to the U.S. Constitution Free Exercise Clause System of Individualized Assessments 101. Plaintiffs incorporate by reference all preceding paragraphs. 102. A law that burdens religious exercise “must satisfy strict scrutiny if it permits individualized, discretionary exemptions because such a regime creates the opportunity for a facially neutral and generally applicable standard to be applied in practice in a way that discriminates against religiously motivated conduct.” Blackhawk v. Pennsylvania, 381 F.3d 202, 209 (3d Cir. 2004). 103. Defendants’ Resolution, calling for an investigation, demonstrates that the City is engaging in an individualized assessment of Plaintiffs’ actions and the applicability of the law and of any exceptions.
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104. The Human Relation Commission’s specific inquiry into Plaintiffs’ practices constitutes an individualized assessment of their practices and the application of the law.
105. The City admits that it can make exceptions to its policies in some circumstances, but it is unwilling to extend an exception to allow Catholic Social Services “freedom to express” its religious beliefs in this circumstance.
106. State law permits individualized exemptions from foster care agency requirements.
107. The contract suspension and subsequent refusal to lift that suspension are the product of a system of individualized exemptions and burden Plaintiffs’ religious exercise.
108. Defendants do not have a compelling reason for their actions, and Defendants have not selected the means least restrictive of religious exercise in order to further their interests.
109. Absent injunctive and declaratory relief against Defendants, Plaintiffs are and will continue to be irreparably harmed.
Count V 42 U.S.C. § 1983 Violation of the First Amendment to the U.S. Constitution Free Speech Clause Compelled Speech 110. Plaintiffs incorporate by reference all preceding paragraphs. 111. Defendants are seeking to compel Plaintiffs to make affirmative statements that contradict Plaintiffs’ religious beliefs.
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112. The City is conditioning contracts with the City, and the ongoing ability to engage in the religious exercise of helping children in need, on Plaintiffs’ willingness to make such statements.
113. Such compulsion amounts to compelled speech in violation of the Free Speech Clause of the First Amendment to the United States Constitution.
114. Absent injunctive and declaratory relief against Defendants, Plaintiffs are and will continue to be irreparably harmed.
Count VI 42 U.S.C. § 1983 Violation of the First Amendment to the U.S. Constitution Free Speech Clause Retaliation for Protected Speech 115. Plaintiffs incorporate by reference all preceding paragraphs. 116. Statements made by and on behalf of Plaintiffs about their religious beliefs and practices are protected speech. 117. Defendants’ contract suspension and inquiry, and their threats of contract termination and subpoena power, would be sufficient to deter a person of ordinary firmness from exercising his or her constitutional rights. 118. A causal link exists between Plaintiffs’ protected speech and Defendants’ adverse actions against Plaintiffs. 119. Such actions are retaliation for protected speech in violation of the First Amendment to the United States Constitution. 120. Absent injunctive and declaratory relief against defendants, Plaintiffs are and will continue to be irreparably harmed.
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Count VII 42 U.S.C. § 1983 Violation of the First Amendment to the U.S. Constitution Free Exercise and Establishment Clauses Denominational Preference and Discrimination 121. Plaintiffs incorporate by reference all preceding paragraphs. 122. The Free Exercise and Establishment Clauses prohibit government from officially preferring one denomination over another or discriminating against a religious group for its religious beliefs and practices. 123. Defendants are applying their laws in a manner which penalizes Catholic Social Services for its religious beliefs. Defendants’ actions also alienate, communicate disapproval to, and impose concrete harms on foster families such as Ms. Fulton, Mrs. Paul, and Ms. Simms-Busch, who share the Catholic religious beliefs of Catholic Social Services. 124. Defendants have not penalized other religious groups for their religious beliefs. 125. Defendants’ preference for some religious beliefs and practices and discrimination against Plaintiffs’ beliefs and practices violates the Free Exercise and Establishment Clauses of the First Amendment to the United States Constitution. 126. Defendants do not have a compelling reason for their actions, and Defendants have not selected the means least restrictive of religious exercise in order to further their interests.
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127. Absent injunctive and declaratory relief against Defendants, Plaintiffs have been and will continue to be irreparably harmed.
Count VIII 42 U.S.C. § 1983 Violation of the Fourteenth Amendment to the U.S. Constitution Equal Protection 128. Plaintiffs incorporate by reference all preceding paragraphs. 129. The Equal Protection Clause prohibits discrimination on the basis of religion. 130. Defendants’ unlawful contract suspension and investigation penalizes Plaintiffs because of their religious beliefs. 131. Contractors that espouse religious beliefs contrary to those espoused by Plaintiffs are allowed to maintain recognized status. 21. Defendants’ preference for one set of religious beliefs and against Plaintiffs’ religious beliefs violates the Equal Protection Clause of the Fourteenth Amendment to the United States Constitution. 132. Absent injunctive and declaratory relief, Plaintiffs have been and will continue to be irreparably harmed.
Count IX Violation of the Pennsylvania Constitution Article I, § 3
Religious Freedom 133. Plaintiffs incorporate by reference all preceding paragraphs. 134. Pennsylvania’s Constitution states that Defendants may not, “in any case whatever, control or interfere with the rights of conscience,” and that “no preference
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shall ever be given by law to any religious establishments or modes of worship.” Pa. Const. art. I, § 3.
135. Defendants’ attempt to compel Plaintiffs to act contrary to their religious beliefs and teachings, and to prevent them from acting consistently with their religious beliefs, is an unlawful attempt to control or interfere with their right of conscience.
136. Defendants’ decision to penalize Plaintiffs for their religious beliefs and practices constitutes a substantial burden on Plaintiffs’ religious exercise; it places substantial pressure on Plaintiffs to modify their behavior and violate their religious beliefs.
137. Defendants’ decision to penalize Plaintiffs, but not other religious groups which contract with the City, constitutes a preference given by law to a mode of worship.
138. Absent injunctive and declaratory relief against Defendants, Plaintiffs have been and will continue to be irreparably harmed.
Count X Violation of the Pennsylvania Constitution Article I, § 7
Freedom of Press and Speech 139. Plaintiffs incorporate by reference all preceding paragraphs. 140. The Pennsylvania Constitution guarantees that “every citizen may freely speak, write and print on any subject.” Pa. Const. art. I, § 7. 141. Defendants have penalized Plaintiffs for speaking, writing, and printing their beliefs regarding marriage.
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142. Defendants are conditioning contracts with the City on whether Plaintiffs make statements acceptable to the City.
143. Defendants’ actions constitute retaliation against Plaintiffs for their protected speech.
144. Such penalties and compulsion violate Article I, Section 7 of the Pennsylvania Constitution.
145. Defendants have no compelling interest in penalizing Plaintiffs’ speech, and their actions are not narrowly tailored to achieve their goals.
146. Absent injunctive and declaratory relief against Defendants, Plaintiffs are and will continue to be irreparably harmed.
Count XI Violation of the Pennsylvania Constitution Article I, § 26 Discrimination by the Commonwealth and its political subdivisions 147. Plaintiffs incorporate by reference all preceding paragraphs. 148. Pennsylvania’s Constitution states: “Neither the Commonwealth nor any political subdivision thereof shall deny to any person the enjoyment of any civil right, nor discriminate against any person in the exercise of any civil right.” Pa. Const. art. I, § 26. 149. This provision is intended to protect Pennsylvania citizens from being harassed or punished for the exercise of their constitutional rights. 150. Defendants are a political subdivision of the Commonwealth for purposes of this section.
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151. Defendants’ unlawful actions have denied to Plaintiffs the enjoyment of their civil right to religious freedom, and punished and discriminated against them in the exercise of their civil right of religious freedom.
152. Section 26 prohibits discrimination on the basis of religion. 153. Defendants’ unlawful contract suspension and investigation penalizes Plaintiffs because of their religious beliefs. 154. Contractors that espouse religious beliefs contrary to those espoused by Plaintiffs are allowed to maintain recognized status. 155. Defendants’ preference for one set of religious beliefs and against Plaintiffs’ religious beliefs violates Article I, Section 26 of the Pennsylvania Constitution. 156. Absent injunctive and declaratory relief, Plaintiffs have been and will continue to be irreparably harmed.
Count XII Violation of the Philadelphia Charter Article X, § 10-111
Discrimination by the City 157. Plaintiffs incorporate by reference all preceding paragraphs. 158. The Philadelphia Charter states that “no department, board or commission of the City shall in the exercise of his or its powers and the performance of his or its duties or in the granting of the use of City property discriminate against any person because of race, color, religion or national origin….” 159. Defendants are departments, boards, or commissions of the City. 160. Defendants have discriminated against Plaintiffs in the performance of Defendants’ duties due to Plaintiffs’ religion.
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161. Absent injunctive and declaratory relief against Defendants, Plaintiffs have been and will continue to be irreparably harmed.
Count XIII Breach of Contract 162. Plaintiffs incorporate by reference all preceding paragraphs. 163. Effective June 27, 2017, Plaintiffs entered into a renewed contract with the City to provide foster care services. 164. Under the contract, Defendants were obligated to, among other things, fill openings in existing foster homes, place children in foster homes with their siblings where possible, refer children seeking foster homes to Plaintiffs, and compensate Plaintiffs on a per diem basis for the foster placements they oversee. 165. Defendants breached this contract in at least the following ways: (1) Defendants refused to place new referrals with Plaintiffs in violation of the contract; (2) Defendants suspended performance of the contract without following the appropriate termination process outlined in Article 14.1 of the contract; (3) Defendants prevented full performance of the Contract by ordering third parties not to provide referrals to Plaintiffs; (4) Defendants prevented full performance of the Contract by refusing to make referrals to Catholic Social Services; (5) Defendants failed to fill existing vacancies in the homes of foster families working with Catholic Social Services. 166. Plaintiffs have suffered, and will continue to suffer, damages as a direct result of Defendants’ breach.
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167. Plaintiffs are entitled to an injunction and declaratory relief, as well as damages due to Defendants’ breach.
Count XIV Equitable Estoppel 168. Plaintiffs incorporate by reference all preceding paragraphs. 169. Defendants have long been aware of Catholic Social Services’ religious beliefs concerning marriage. 170. Defendants, through their actions, representations, and silence, induced Plaintiffs to believe that Defendants would continue to (1) respect Plaintiffs’ sincere religious beliefs, (2) provide an appropriate accommodation to Plaintiffs pursuant to Phila. Code § 17-1904 to continue their vital work, (3) continue to refer children to Catholic Social Services for foster placement on a regular basis, as Defendants have done for many years, and (4) continue to partner with Plaintiffs to provide foster care services. 171. Plaintiffs justifiably relied on Defendants’ long-time practices of making referrals to Catholic Social Services and of providing an accommodation that would allow Plaintiffs to continue partnering with the City. That reliance is demonstrated by Catholic Social Services’ actions in hiring staff to work on the services provided under the Contract; budgeting based upon projections and historical actions by the City under the Contract; and taking other actions showing detrimental reliance by Plaintiffs. It is also demonstrated by Mrs. Paul, Ms. Fulton, and Ms. Simms-Busch making important life decisions about their family with the expectation that they would be able to continue relying on Catholic Social Services.
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172. Defendants are equitably estopped from taking a position contrary to their prior representations on which Plaintiffs relied. Accordingly, Plaintiffs are entitled to injunctive and declaratory relief to that effect.
Count XV 42 U.S.C. § 1983 Violation of the First and Fourteenth Amendments of the U.S. Constitution Free Exercise and Due Process Clauses: Parental Association 173. Plaintiffs incorporate by reference all preceding paragraphs. 176. The liberty protected by the Due Process Clause includes the right of parents to establish a home and bring up children. This liberty interest extends to foster parents. The Supreme Court has recognized both a parental and free exercise interest in being able to raise children consistent with religious beliefs. Wisconsin v. Yoder, 406 U.S. 205, 213–14 (1972) (“[T]he values of parental direction of the religious upbringing and education of their children in their early and formative years have a high place in our society.”). 177. Ms. Simms-Busch specifically chose to work with Catholic Social Services because this foster agency shares her religious beliefs and would make it possible for her to raise foster children consistent with her own religious values. By preventing Ms. Simms-Busch from working with Catholic Social Services, Defendants are infringing on her liberty interests to have a family consistent with her religious beliefs. 178. Mrs. Paul wants to foster more children, and she has worked with CSS for the past 46 years. Mrs. Paul also chose to work with Catholic Social Services so that she could raise her foster children consistent with her own religious values. By
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preventing Mrs. Paul from working with Catholic Social Services for her next foster child, Defendants are preventing Mrs. Paul from fostering children at all, infringing her liberty interests to have a family relationship protected by the Constitution.
179. Similarly, Ms. Fulton is currently caring for two foster children. If the City terminates its contract with Catholic Social Services, or refuses to renew the contract in June, the two foster children Ms. Fulton is caring for will be immediately transferred away from Ms. Fulton. By preventing Ms. Fulton from working with Catholic Social Services to continue caring for her current foster children, Defendants are infringing on her liberty interests to have a family relationship protected by the Constitution.
180. Plaintiffs wish to associate with their chosen religious foster agency, Catholic Social Services, in order to pursue foster parenthood as protected by the Constitution.
181. Absent injunctive and declaratory relief, Plaintiffs have been and will continue to be irreparably harmed.
Count XVI 42 U.S.C. § 1983 Violation of the Fourteenth Amendment of the U.S. Constitution Due Process Clause: Sibling Association 182. Plaintiffs incorporate by reference all preceding paragraphs. 183. The Fourteenth Amendment recognized the liberty interest siblings have in protecting their relationships with each other. That liberty interests extends to the foster and adoption context.
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184. Ms. Simms-Busch is fostering two young children who are biological siblings. Ms. Simms-Busch would be very open to fostering and adopting a biological sibling of her children if that child needs to enter the foster care system.
185. Defendants’ actions impede and may entirely prevent Ms. Simms-Busch from fostering and adopting a child and uniting biological siblings in her home, violating those siblings and Ms. Simms-Busch’s constitutional rights under the 14th Amendment.
186. Absent injunctive and declaratory relief, Ms. Simms-Busch, and her children, have been and will continue to be irreparably harmed.
PRAYER FOR RELIEF Wherefore, Plaintiffs request that the Court: a. Declare that the Religious Freedom Protection Act; First and Fourteenth Amendments to the United States Constitution; Article I, Sections 3, 7, and 26 of the Pennsylvania Constitution; and Article 10, Section 10-111 of the Philadelphia Charter, require Defendants to cease discriminating against Plaintiffs and to cease their ongoing investigation and unlawful contract suspension on the basis of Plaintiffs’ religious beliefs, speech, and practices; b. Declare that Defendants have breached their contract with Plaintiffs and should be equitably estopped from applying their contract terms in a manner that would penalize Plaintiffs for their religious belief, speech, and practices regarding marriage; c. Order Defendants to resume and continue performance of the Contract; d. Issue preliminary and permanent injunctions prohibiting Defendants from taking retaliatory action against Plaintiffs, including cancellation or non-renewal of the foster services contract, or from otherwise penalizing Plaintiffs for their religious belief, speech, and practices regarding marriage; e. Award Plaintiffs nominal damages for the loss of their rights as protected by law;
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f. Award Plaintiffs actual damages for the costs they have incurred and the contract revenues they have lost as a result of Defendants’ unlawful actions; g. Award Plaintiffs the costs of this action and reasonable attorney’s fees; and h. Award such other and further relief as the Court deems equitable and just.

Dated: May 16, 2018

Respectfully submitted,
/s/ Nicholas M. Centrella Nicholas M. Centrella Conrad O’Brien PC 1500 Market Street, Suite 3900 Philadelphia, PA 19102-2100 Telephone: (215) 864-8098 Facsimile: (215) 864-0798 ncentrella@conradobrien.com
Mark Rienzi* Lori Windham* Stephanie Barclay* The Becket Fund for Religious Liberty 1200 New Hampshire Ave. NW, Suite 700 Washington, DC 20036 Telephone: (202) 955-0095 Facsimile: (202) 955-0090
Counsel for Proposed Intervenor *Admission pro hac vice pending

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Exhibit B

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City of Philadelphia
Council of the City of Philadelphia Office of the Chief Clerk Room 402, City Hall Philadelphia
(Resolution No. 180252)
RESOLUTION
Authorizing the Committee on Public Health and Human Services to investigate Department of Human Services’ policies on contracting with social services agencies that either discriminate against prospective LGBTQ foster parents or allow non-LGBTQ foster parents to discriminate.
WHEREAS, Currently, approximately 700 children in Philadelphia are residing in group home placements, and according to the Philadelphia School Notebook more than 8,000 children were in foster care at some point during 2016; and
WHEREAS, In March 2018 the Department of Human Services announced its first major recruitment of foster parents in more than a decade—putting out an urgent call for 300 parents which included specific appeals to the LGBTQ community—to help move children from group homes into family settings; and
WHEREAS, The Department of Human Services currently has contracts with several social service providers for foster care placement and adoption services which were collectively reimbursed by the City for $3 million in 2017; and
WHEREAS, According to Section 14.1 of the City of Philadelphia Professional Services Contract, providers “shall not discriminate or permit discrimination against any individual because of race, color, religion, ancestry or national original, sex, gender identity, sexual orientation, age or disability”; and
WHEREAS, At least two of these providers have policies that prohibit the placement of children with LGBTQ people based on religious principles, although the City of Philadelphia has laws in place to protect its people from discrimination that occurs under the guise of religious freedom; and
WHEREAS, The Fair Practices Ordinance is the City’s local anti-discrimination law, enacted in 1963 to prohibit discrimination in Philadelphia in employment, housing, and
City of Philadelphia - 1 -

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City of Philadelphia
RESOLUTION NO. 180252 continued
places of public accommodation in addition to covering over 16 protected categories such as race, religion, national origin, age, sex, disability, sexual orientation, and gender identity; and WHEREAS, Any agency which violates City contract rules in addition to the Fair Practices Ordinance should have their contract with the City terminated with all deliberate speed; and WHEREAS, The Department should also conduct a thorough review of its contracts with all of its 26 foster care agencies to ensure that providers are adhering to antidiscrimination policies as they pertain to the City’s protected classes, now, therefore, be it RESOLVED, BY THE COUNCIL OF THE CITY OF PHILADELPHIA, That it hereby authorizes the Committee on Public Health and Human Services to investigate Department of Human Services’ policies on contracting with social services agencies that either discriminate against prospective LGBTQ foster parents and allow non-LGBTQ foster parents to discriminate against children.
City of Philadelphia - 2 -

Case 2:18-cv-02075-PBT Document 1-6 Filed 05/17/18 Page 4 of 5
City of Philadelphia
RESOLUTION NO. 180252 continued
City of Philadelphia - 3 -

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City of Philadelphia
RESOLUTION NO. 180252 continued
CERTIFICATION: This is a true and correct copy of the original Resolution, Adopted by the Council of the City of Philadelphia on the fifteenth of March, 2018.
Darrell L. Clarke PRESIDENT OF THE COUNCIL
Michael A. Decker CHIEF CLERK OF THE COUNCIL

Introduced by: Sponsored by:

Councilmembers Bass, Green, Gym and Parker
Councilmembers Bass, Green, Gym, Parker, Reynolds Brown, Jones, Blackwell, Greenlee, Squilla, Oh and Johnson

City of Philadelphia - 4 -

Case 2:18-cv-02075-PBT Document 1-7 Filed 05/17/18 Page 1 of 4
Exhibit C

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Exhibit D

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Case 2:18-cv-02075-PBT Document 1-9 Filed 05/17/18 Page 1 of 9
Exhibit E

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Mr. Thomas Earle Ms. Rue Landau Philadelphia Commission on Human Relations 601 Walnut Street Suite 300 South Philadelphia, PA 19106 Via Email
Dear Mr. Earle and Ms. Landau,
I am President of the Becket Fund for Religious Liberty, and I represent Catholic Social Services for the Archdiocese of Philadelphia in this matter. Becket is the nation’s leading law firm dedicated to protecting religious freedom. Our lawyers have a remarkable track record, including five Supreme Court victories in the last six years. Those cases include rulings protecting a Muslim prison inmate who was forbidden to grow a beard, Massachusetts sidewalk counselors restricted in their free speech near abortion clinics, the Little Sisters of the Poor in their challenge to the contraceptive mandate, and a Lutheran church sued for allegedly violating antidiscrimination law.1 These decisions were unanimous. Most recently, we succeeded in forcing the Trump administration to change its discriminatory disaster relief policy after litigation on behalf of churches and synagogues damaged by hurricanes.2
I am writing in response to your March 16, 2018 letter concerning the foster care services provided by Catholic Social Services to the City of Philadelphia (“the City”). Your letter comes on the heels of the City’s decision to suspend referrals of future foster care intakes to Catholic Social Services, a decision that is both harmful to children and families and an illegal breach of contract. While my clients are somewhat puzzled by the Commission’s involvement in the matter and reserve the right to challenge its jurisdiction, they welcome this opportunity to better understand the City’s goals and resolve this issue amicably so that we can continue serving children in need.
1 Holt v. Hobbs, 135 S.Ct. 853 (2015) (9-0); McCullen v. Coakley, 134 S. Ct. 2518 (2014) (9-0); Zubik v. Burwell, 136 S.Ct. 1557 (2016) (9-0); Hosanna-Tabor Evangelical Lutheran Church and School v. EEOC, 565 U.S. 171 (2012) (9-0); see also Burwell v. Hobby Lobby, 134 S. Ct. 2751 (2014) (5-4). 2 See Letter of Solicitor General to Clerk of the Supreme Court (Jan. 3, 2018), available at https://s3.amazonaws.com/becketnewsite/17A649-Harvest-Family-Church-letter.pdf.

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April 18, 2018 Page 2 of 8
The Shortage of Families
As I’m sure you know, the City is facing an acute need for more foster families to provide homes for at-risk children. Just last month, the City sent out an “urgent” call that 300 additional families are needed for fostering,3 and other organizations have recognized that the City faces a “crisis” because of “the lack of qualified foster parents and other placement options for the increasing number of children in care.”4 Approximately 13,000–15,000 PA children are currently in foster care and part of Pennsylvania’s child welfare system,5 and over 5,000 of those children are in Philadelphia’s foster care system alone.
That is why the City relies on private agencies to help fill this shortage. In Philadelphia, there are 28 agencies who partner with the city to provide foster services.6 Of those agencies, eight obtained additional competitive contracts with the City to also serve as a Community Umbrella Agency (CUA), an entity that works to try to help at-risk children stay in their homes where such an option would be possible and safe for the child. If that option is not available, the CUA refers the child to be placed in foster care. Agencies place children with foster families who have already undergone extensive interviews and home studies by social workers. The social workers make a recommendation that a particular foster family would be an appropriate family to care for foster children.7 The culmination of these interviews, home studies, and recommendations includes agency certification that a
3 Julia Terruso, Philly puts out ‘urgent’ call – 300 families needed for fostering, Philadelphia Inquirer, March 18, 2018, http://www.philly.com/philly/news/foster-parents-dhs-philly-child-welfare-adoptions20180308.html. 4 David R. Fair, Partners for Philadelphia Families Testimony to Philadelphia City Council, Turning Points for Children, (June 15, 2016), www.turningpointsforchildren.org/news/228-partners-forphiladelphia-families-testimony 5 Pennsylvania State Resource Family Association, Being A Foster Parent: The Facts, https://www.psrfa.org/being-a-foster-parent/the-facts/ (last accessed April 4, 2018); in 2017, there were over 25,000 youth statewide who were at some point in Pennsylvania’s out of home placement program. Pennsylvania Partnerships for Children, 2018 State of Child Welfare, http://www.papartnerships.org/socw2018 (last accessed April 4, 2018); Pennsylvania Partnerships for Children, 2018 State of Child Welfare Data Sheets, http://www.papartnerships.org/reports/ 2018_socw/source_files/Pennsylvania%202018%20SOCW.pdf (last accessed April 4, 2018). 6 City of Philadelphia, Department of Human Services, Foster Care Licensing Agencies (contracted by Philadelphia DHS), https://beta.phila.gov/media/20180402133414/DHS_Philadelphia_Foster_Care_ Agencies_32818.pdf (last accessed April 4, 2018). 7 Pa. Code § 3700.64, https://www.pacode.com/secure/data/055/chapter3700/s3700.64.html.

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April 18, 2018 Page 3 of 8
foster family is approved to care for foster children.8 The City provides per diem payments only after an agency has accepted the referral of a child and is supervising that placement with an approved foster family.
A foster agency provides ongoing training and support and works with the assigned CUA case manager to coordinate services to the foster family, birth family and child in order to achieve a positive outcome. Foster parents are needed not only to care for children, but to provide mentoring to the birth family and support the relationship between the child and the birth family. This collaborative approach assesses the continued appropriateness of temporary placement and explores options for permanency through return to the birth family, placement with kin, or adoption.
A Dedication to Children
Catholic Social Services shares the City’s goal of working to fill the shortage of safe homes for these vulnerable kids. Today, permanency is Catholic Social Services’ number one priority, aimed at preventing children from languishing too long in uncertainty. Catholic Social Services, foster care department prioritizes permanency, and the statistics demonstrate its success—about 50 children per year either return to their families or move to adoption with their foster families.9 Catholic Social Services’ Youth Division, including St. Gabriel’s System and St. Francis & St Vincent Homes, serves 1,544 youth in placement, and approximately 1,400 families per year across all of its child welfare and juvenile justice programs. As one of those programs, Catholic Social Services Foster Care currently cares for 127 children daily whom it has currently placed in foster arrangements through referrals from the City.
Catholic Social Services also provides important ancillary services to children and families. For example, Catholic Social Services, St. Gabriel’s System, is certified as a Sanctuary Model of Trauma-Informed Care provider—a best practice standard now hailed nationwide. Catholic Social Services also provides educational programming via state-licensed schools at St.Gabriel’s Hall, DeLaSalle Vocational
8 Pa. Code §§ 3700.61, 3700.69, https://www.pacode.com/secure/data/055/chapter3700/s3700.69.html. 9 City of Philadelphia, Department of Human Services, Resource Parent Handbook: A Guide for Foster and Kinship Caregivers, 11 (Sept. 26, 2017), https://beta.phila.gov/media/20170926145732/ DHS-Resource-Handbook-FINAL-VERSION-small.pdf (discussing the importance of permanency for children).

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School and St. Francis Homes. Last year, through Catholic Social Services programs, 132 graduates received high school diplomas.
Catholic Social Services’ Religious Mission and Practices
Catholic Social Services exists to transform lives and bring about a just and compassionate society where every individual is valued, families are healthy and strong, and communities are united in their commitment to the good of all. Catholic Social Services works towards a world touched by God’s mercy: where poverty and need are alleviated and all people share justly in the blessings of creation. Catholic Social Services is dedicated to serving others in a spirit of humility and genuine concern for the well-being of its neighbors and affirms the God-given dignity and worth of every person.
The religious mission of Catholic Social Services is rooted historically in its foster work. In 1916, the Catholic Children’s Bureau was established and staffed by Missionary Sisters of the Blessed Trinity, early Catholic pioneers in social work. Their work continues today through the dedicated efforts of the foster care program. This ongoing religious mission motivates the staff of Catholic Social Services to provide exemplary services to children and families in Philadelphia.
Catholic Social Services serves and places children regardless of their race, color, sex, sexual orientation, gender identity, religion, national origin, ancestry, age, disability, source of income, familial status, genetic information, or sexual violence victim status. Catholic Social Services would never stop a family who wants to foster from having the opportunity to complete the application and home study process, either through Catholic Social Services or another agency. If Catholic Social Services is unable to perform in-depth home assessments and make recommendations to the state for any reason, including consistency with its religious mission, then Catholic Social Services will refer the potential foster parent to one of 28 nearby agencies who can better serve their needs. Four agencies are located within just two miles of Catholic Social Services’ downtown office.
No same-sex couples have been denied the ability to become foster parents because of Catholic Social Services, and no same-sex couples have filed complaints against Catholic Social Services regarding its provision of services.

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The City’s Unlawful Suspension of Catholic Social Services’ Contract
As the Commission is aware, on March 15, 2018, the City announced that it was suspending referral of future foster care intakes to Catholic Social Services. Philadelphia Councilwoman Cindy Bass introduced a resolution March 15 authorizing “the Committee on Public Health and Human Services to investigate Department of Human Services’ policies on contracting with social services agencies that either discriminate against prospective LGBTQ foster parents or allow nonLGBTQ foster parents to discriminate.” On March 27, 2018, Staci Boyd, the Operations Director at the Department of Human Services, sent an email to other foster agencies in Philadelphia forbidding them from referring any additional foster intakes to Catholic Social Services.
The City’s suspension of Catholic Social Services’ contract is unjustified and unlawful for at least four reasons.
First, Catholic Social Services’ foster services do not constitute a “public accommodation” under the City’s Fair Practices Ordinance, and therefore it is not bound by that ordinance, nor subject to penalties or investigations pursuant to that ordinance, nor can it have violated the contract provision relating to that ordinance. Catholic Social Services does not offer, sell, or make available its services to the public that entail supervision of a child placed with an approved foster family. Phila., Pa., Admin. Code § 9-1102(1)(w). These services are only available to at-risk children who have been removed by the state and are in need of a loving home, and Catholic Social Services serves any child who is referred to them. The City only pays Catholic Social Services a per diem for these supervisory services, and the City is not contracted to compensate Catholic Social Services for anything else related to the provision of foster care.
Furthermore, the Pennsylvania Supreme Court has declined to treat a Catholic religious entity as a public accommodation because of its private, religious character. See Roman Catholic Archdiocese of Philadelphia v. Com., Pennsylvania Human Relations Comm’n, 119 Pa. Cmwlth. 445 (1988).
Second, even if Catholic Social Services’ foster services did constitute a public accommodation, no “unlawful public accommodation practice” has occurred. No individual or couple has alleged that Catholic Social Services has “den[ied] or interfere[d] with the public accommodations opportunities of an individual.” Nor

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could they, because no allegation has been made that Catholic Social Services prevented anyone from receiving relevant city services, nor has Catholic Social Services prevented any child from being placed in a family. Courts have denied similar meritless public accommodation claims when there was not a clear allegation that an individual was actually denied services. See, e.g., Abdul-Latif v. Cty. of Lancaster, 990 F. Supp. 2d 517, 533 (E.D. Pa. 2014) (dismissing public accommodation claim because plaintiff had not tried to access the services).
Third, the City’s contract with Catholic Social Services states under the relevant nondiscrimination Paragraph 15.1 that the City may “suspend or terminate” its contract with Catholic Social Services only “[i]n the event of any breach of this Section 15.1.” The City has not set forth any clear basis for breach of contract prior to engaging in suspending additional referrals. Nor has it provided the notice required under the contract prior to exercising its remedies. See Section 12.2. As such, the City is in breach of its contract with Catholic Social Services by failing to perform and for preventing Catholic Social Services from continuing to perform without any justification.
Many state and federal courts have held that a government entity breached its contract with a private party and was subject to damages or injunctive relief when it terminated its agreement or prevented performance of a contract without being clearly “justified under state law.”10 Here, if the City continues to suspend referrals and impede Catholic Social Services’ ability to perform under its contract without clear justification, the City will likewise be subject to claims for injunctive relief or monetary damages.
This breach has real-world consequences. After the City informed Catholic Social Services that it would not receive any new referrals, Catholic Social Services received a request regarding a child who had just been taken into foster care. The agency wished to place that child with his siblings, who had been placed with a family through Catholic Social Services. Responding to an urgent need, Catholic Social Services placed the child with his siblings that afternoon, and informed DHS
10 N. Penna. Legal Servs., Inc. v. Lackawanna Cty., 513 F. Supp. 678 (M.D. Pa. 1981); see also, e.g., Com., Dep't of Transp. v. Brozzetti, 684 A.2d 658, 665 (Pa. Commw. Ct. 1996) (government breached contract when it failed to justify its termination for convenience).

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of the placement. That placement was made in accordance with best practices and law, which favor family placement of siblings wherever possible.11 After that placement was made, DHS sent a message to its referral partners regarding Catholic Social Services and Bethany Christian Services, stating that “NO referrals are sent to these two providers effective immediately,” and demanding that all its partners affirm this directive in writing.
If a similar situation happens in the future, it appears that DHS is willing to violate its own best practices guidelines and ignore the best interests of children. Surely the City does not actually believe it would be better if Catholic Social Services had not been willing and able to place the child with his siblings.
Fourth, the City has been engaging in blatant unconstitutional targeting of organizations based on their religious beliefs. Despite receiving no complaints from families about the practices of Catholic Social Services, the City suspended continued foster referrals. The City cannot simply lump all religious organizations into a category of groups with beliefs the City does not agree with and punitively banish them from public service as a result. Nor can it lawfully punish Catholic Social Services for operating according to its religious beliefs—particularly in a way that has worked well, without complaint, for decades.
Moving Forward
Because the City has not articulated any clear breach of contract justifying a suspension of foster referrals, and because I trust the City does not wish to continue violating Catholic Social Services’ rights under federal, state, and City law, I am confident that the City will quickly resume normal services and operations with Catholic Social Services to avoid mounting claims for injunctive relief and monetary damages.
In the alternative, I assume that the City will immediately provide a clear legal basis for its allegations that Catholic Social Services is in breach of its contract. Such allegations would, of course, need to explain what the City would require of
11 City of Philadelphia, Department of Human Services, Resource Parent Handbook: A Guide for Foster and Kinship Caregivers, 7 (Sept. 26, 2017) (“[I]t is DHS policy to keep siblings—brothers and sisters—together whenever possible in the same home unless there is a very strong reason for their separation.”).

Case 2:18-cv-02075-PBT Document 1-9 Filed 05/17/18 Page 9 of 9
April 18, 2018 Page 8 of 8
Catholic Social Services to come into compliance. For example, is the City requiring Catholic Social Services to promise that it will engage in detailed home assessments and make written endorsements and recommendations to the City that run contrary to Catholic Social Services’ religious beliefs regarding marriage? We would need to understand exactly what tasks the City is demanding that Catholic Social Services do, and exactly what outcomes are expected, before we could evaluate the City’s position. I look forward to your response and a prompt resolution of this matter so that we can all continue our work of serving the City’s most vulnerable children. These children need and deserve help, and Catholic Social Services remains eager to provide it.
Sincerely,
Mark Rienzi President The Becket Fund for Religious Liberty

Case 2:18-cv-02075-PBT Document 1-10 Filed 05/17/18 Page 1 of 3
Exhibit F

Case 2:18-cv-02075-PBT Document 1-10 Filed 05/17/18 Page 2 of 3

Case 2:18-cv-02075-PBT Document 1-10 Filed 05/17/18 Page 3 of 3

Case 2:18-cv-02075-PBT Document 1-11 Filed 05/17/18 Page 1 of 5
Exhibit G

Case 2:18-cv-02075-PBT Document 1-11 Filed 05/17/18 Page 2 of 5

CITY OF PHILADELPHIA

LAW DEPARTMENT One Parkway 1515 Arch Street Philadelphia, PA 19102-1595

May 7, 2018
Mark Rienzi President The Becket Fund for Religious Liberty 1200 New Hampshire Ave. NW, Suite 700 Washington, DC 20036
Dear Mr. Rienzi:
The City of Philadelphia (the "City") is in receipt of your letter dated April 18, 2018 to the Philadelphia Commission on Human Relations (the "Commission"). Mr. Earle or Ms. Landau will respond directly to you regarding the questions you raise concerning the Commission' s jurisdiction. We are writing to you separately to respond to the concerns you raise regarding the City' s decision to suspend new referrals from DHS to Catholic Social Services' ("CSS") family foster care program.
While we are genuinely appreciative of the invaluable services that CSS provides on the City's behalf to the City' s most vulnerable children and to the resource families that care for those children, those services must be provided in a manner consistent with certain core City principles, including our non-discrimination rules. As CSS works on the City's behalf, we cannot allow discrimination against qualified couples who are ready to take on this important role, simply because of whom they choose to marry. We would not allow such discrimination against, for example, Catholic couples or "mixed-race" couples, and we cannot allow it with respect to same-sex couples, either.
You take issue in your letter with the City's ability to apply these non-discrimination rules in the context of CSS's current contract with the City. We disagree.
Nothing in CSS's existing contract obligates the City to continue to send any referrals to CSS . A review of CSS ' s contract For General, Kinship, and Teen Parent/Baby Resource Home Care Providers shows numerous duties on the part of CSS, but for DHS, its duty primarily is to provide CSS with support and compensation for the services that CSS performs, with no minimum guarantee or even a duty to provide any referrals. Without any duty to make referrals, DHS simply cannot be in breach of its contract for failure to continue making referrals.

Case 2:18-cv-02075-PBT Document 1-11 Filed 05/17/18 Page 3 of 5
Moreover, the City has the unilateral right under the contract to terminate or suspend the contract, regardless of any breach or lack thereof by CSS, "for any reason, including, without limitation, the convenience of the City." Professional Services Contract General Provisions
("General Provisions") ,r 14.2. You correctly note in your letter that the City has not sent to CSS
a notice of default or a notice to suspend or terminate. That is intentional, as we do not wish to make this an adversarial proceeding, and we remain hopeful that CSS will comply with its contractual obligations and will implement them in a non-discriminatory manner. Regardless, however, the City reserves the right to cancel or suspend this contract, at any time, for the City's convemence.
Of course, the City does not need to rely on its mere convenience. Section 3.21 of the General Provisions states:
Provider 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 Provider Agreement, unless an exception is granted by the Commissioner or the Commissioner's designee, in his/her sole discretion.
("Services" are defined at General Provisions ,r 1.72 as "the work to be performed under this
contract," which plainly includes the intake and registration of new, prospective foster parents. See, e.g., Scope of Service p.4 ("Resource caregivers are screened, trained, and certified by the Provider."); id. at 6 ("Provider is responsible for offering training and related support to Resource Parents")). In your letter, you confirm that CSS has no intention of complying with this contractual obligation to provide Services to all qualified families, as you have clearly reaffirmed that CSS intends to reject families for Services based solely on the fact that they are same-sex couples. That is not a permissible reason for rejection under either the Scope of Services set forth in the contract or under DHS's applicable standards, and the Commissioner has no intention of granting an exception.
Indeed, as you know, the refusal to provide Services to same-sex couples constitutes a violation of a fundamental City policy to provide services to all qualified families. We cannot allow a provider, acting under a City contract, to inform a qualified family who wants to give of its time, resources, and home, in order to protect vulnerable children, that they must go elsewhere to make this contribution, solely because our contractual provider disapproves of their familial relationship. The City maintains an important policy that all resource families be treated equally, so long as they meet the agreed-upon eligibility requirements. We recognize that CSS's values and the City's values may diverge here, but CSS is contracting with the City, not free-lancing, and the ultimate responsibility for managing this foster care program belongs to the City. We have to insist that all services provided as part of this program are provided in a manner that is consistent with our conception of equality.

Case 2:18-cv-02075-PBT Document 1-11 Filed 05/17/18 Page 4 of 5
Moreover, and independent of the foregoing, CSS's refusal to provide services to same-sex couples is a violation of law. CSS falls squarely within the definition of a "public accommodation" under the City's Fair Practices Ordinance, Phila. Code§ 9-1102(1)(w), as CSS is, inter alia, a "provider ... whose ... services ... are ... made available to the public." You focus on CSS 's admirable provision of services to the children, but the contract indisputably also requires CSS to provides services to the foster families, including certification, support, reevaluation, and training to any family that meets state regulations and DHS standards and wishes to provide badly needed foster care.
Please be assured that we have not targeted your client on the basis of its religious beliefs. As we explained, our motivation arises from our concern that all families in this City be treated equally with respect to all opportunities and services that are available to them. We respect your sincere religious beliefs, but your freedom to express them is not at issue here where you have chosen voluntarily to partner with us in providing government-funded, secular social services. The Commonwealth has set eligibility standards for prospective foster parents. It is inappropriate (and arguably unconstitutional) for us to allow a provider to add its own requirements for foster parents that are rooted in religious doctrine, and which clash with the constitutional requirement that we treat all marriages/families equally. Nor can we allow you to refuse service to an otherwise eligible family by referring them to another agency.
Please also note that CSS's current contract expires on June 30, 2018, and the City is under no legal obligation to enter into a new contract for any period thereafter. We are hopeful that we can work out any differences before then, but please be advised that -- except where the best interests of a child demands otherwise -- the City does not plan to agree to any further referrals to CSS, and the City intends to assist with the transition of foster families to other agencies, absent assurances that CSS is prepared to adhere to its contractual obligations and, in implementing its City contract, to comply with all applicable laws, including those relating to non-discrimination. We believe our current contract with CSS is quite clear that this is our right, but please be advised that any further contracts with CSS will be explicit in this regard.
Family equality is both a legal requirement, and an important City policy and value that must be embodied in our contractual relationships. IfCSS cannot come into compliance, we are prepared to enter into an interim, contractual relationship with CSS in order for CSS to continue to supervise the foster children in its care properly with the least amount of disruption for them, while the transition to other agencies is completed. On a related note, contrary to the discussion in your letter regarding DHS' s practice concerning siblings, because the best interests of the children in our care are paramount, we did recently grant an exception to the cessation of CSS referrals in that instance to ensure that siblings were placed together, and we expect that the best interests of the children will remain paramount throughout any transition.
In closing, we do not wish to see our valuable relationship with CSS regarding foster care services come to an end. We are hopeful that CSS will be prepared to commit to comply with the letter and spirit of CSS's contractual obligations and the Fair Practices Ordinance by

Case 2:18-cv-02075-PBT Document 1-11 Filed 05/17/18 Page 5 of 5
committing to provide foster care services on a non-discriminatory basis to all families that meet the City's standards. Please let me know as soon as possible whether CSS is prepared to comply with these standards. Alternatively, please let me know with whom I should be in contact for purposes of promptly negotiating a transition plan. Thank you for your understanding and your client's work with children and families.
Sincerely,
· ..I(,U/·1J!.. lA..z._,
Valerie Robinson Chair, Corporate and Tax Group
cc: Rue Landau, Executive Director Philadelphia Commission on Human Relations Cynthia Figueroa, Commissioner, Department of Human Services Marcel S. Pratt, City Solicitor

 
 Case 2:18-cv-02075-PBT Document 53 Filed 07/13/18 Page 1 of 2

IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF PENNSYLVANIA

SHARONELL FULTON, et al.,

:

:

Plaintiffs,

:

:

v.

:

:

CITY OF PHILADELPHIA, et al.,

:

:

Defendants.

:

CIVIL ACTION NO. 18-2075

ORDER

AND NOW, this __13th__ day of July, 2018, upon careful consideration of Plaintiffs’

Motion For A Temporary Restraining Order And Preliminary Injunction (“Injunction Motion”)

(Doc. 13), The City Of Philadelphia’s Memorandum Of Law In Opposition To Plaintiffs’ Motion

For Temporary Restraining Order And Preliminary Injunction (Doc. 21), Proposed Intervenors’

Memorandum of Law, Or, In The Alternative, Amicus Brief, In Opposition To Plaintiffs’ Motion For A Temporary Restraining Order And Preliminary Injunction (“Amicus Brief”) (Doc. 34),1

the matters heard at the evidentiary hearings, and Defendants’ Proposed Findings Of Facts And

Conclusions Of Law (Doc. 45), and Plaintiffs’ Proposed Findings Of Fact And Conclusions Of

Law (Doc. 46), IT IS HEREBY ORDERED AND DECREED that Plaintiffs’ Injunction Motion is DENIED.2

1 On June 18, 2018, the Court accepted the Intervenors’ Opposition Brief as an amicus brief. The Court’s decision was memorialized by an order dated June 19, 2018 (Doc. 33). 2 This Order accompanies the Court’s Memorandum Opinion dated July 13, 2018.
1

Case 2:18-cv-02075-PBT Document 53 Filed 07/13/18 Page 2 of 2 IT IS FURTHER ORDERED that Defendants City of Philadelphia, Department of Human Services for the City of Philadelphia, and Philadelphia Commission on Human Relations shall file an answer or otherwise respond to Plaintiffs’ Complaint (Doc. 1) no later than twentyone (21) days from the date of this Order.
BY THE COURT: /s/ Petrese B. Tucker ____________________________ Hon. Petrese B. Tucker, U.S.D.J.
2

 
 Fulton v. City of Philadelphia, 922 F.3d 140 (2019)

922 F.3d 140 United States Court of Appeals, Third Circuit.
Sharonell FULTON; Cecelia Paul; Toni Lynn Simms-Busch; Catholic Social Services, Appellants
v. CITY OF PHILADELPHIA; Department of Human Services for the City of Philadelphia; Philadelphia Commission on Human Relations Support Center
for Child Advocates; Philadelphia Family Pride (Intervenors in D.C.)
No. 18-2574 |
Argued November 6, 2018 |
(Opinion filed: April 22, 2019)
Synopsis Background: Licensed foster care agency brought action against municipality, asserting claims under Free Exercise and Establishment Clauses of First Amendment, Pennsylvania Religious Freedom Act (RFPA), and Free Speech Clause of First Amendment after municipality closed intake of new referrals and did not offer new contract to agency for not complying with all-comers provisions of contract with regard to providing services to married same-sex couples. The United States District Court for the Eastern District of Pennsylvania, Petrese B. Tucker, 320 F.Supp.3d 661, denied agency’s motion for preliminary injunction, and agency appealed.
Holdings: The Court of Appeals, Ambro, Circuit Judge, held that:
municipality’s fair practices ordinance, which included prohibition of sexual orientation discrimination in public accommodations, was neutral, generally applicable law;
agency was unlikely to prevail on Establishment Clause claim;
fair practices ordinance did not compel agency to adopt municipality’s views on same-sex marriage;
enforcement of fair practices ordinance was not retaliatory;
municipality did not place substantial burden on agency’s free exercise of religion under RFPA; and

agency was not more likely than not to suffer irreparable harm without injunction.
Affirmed.
Procedural Posture(s): On Appeal; Motion for Preliminary Injunction.
*143 Appeal from the United States District Court for the Eastern District of Pennsylvania (D.C. Civil Action No. 2-18-cv-02075), District Judge: Honorable Petrese B. Tucker
Attorneys and Law Firms
Stephanie H. Barclay, Nicholas R. Reaves, Mark L. Rienzi, Lori H. Windham (Argued), Becket Fund for Religious Liberty, 1200 New Hampshire Avenue, N.W., Suite 700, Washington, DC 20036, Nicholas M. Centrella, Conrad O’Brien, 1500 Market Street, West Towers, Suite 3900, Philadelphia, PA 19102, Counsel for Appellants.
Marcel S. Pratt, City Solicitor, Diana Cortes, Chair, Litigation Group, Jane Lovitch Istvan (Argued), Chief Deputy Solicitor, Appeals, Eleanor N. Ewing, Chief Deputy City Solicitor, Affirmative & General Litigation, Elise M. Bruhl, Benjamin H. Field, Schaundra Oliver, Michael W. Pfautz, City of Philadelphia, Law Department 17th Floor, 1515 Arch Street, Philadelphia, PA 19102, Counsel for Appellees.
David J. Hacker, Office of Attorney General of Texas, Office of Special Litigation, P.O. Box 12548, Austin, TX 78711, Counsel for Amicus Appellants State of Missouri, State of Nebraska, State of Oklahoma, State of Alabama, State of Arkansas, State of Louisiana, State of Texas, Commonwealth of Kentucky.
John J. Bursch, Bursch Law, 9339 Cherry Valley Southeast, Suite 78, Caledonia, MI 49316, David A. Cortman, Rory T. Gray, John M. Sharp, Kristen K. Waggoner, Alliance Defending Freedom, 1000 Hurricane Shoals Road, N.E., Building D, Suite 1100, Lawrenceville, GA 30043, Counsel for Amicus Appellants Alliance Defending Freedom, Ethics and Religious Liberty Commission of the Southern Baptist Convention, Family Research Council, Focus on the Family.
William Haun, Shearman & Sterling, 401 9th Street, N.W., Suite 800, Washington, DC 20004, Counsel for Amicus Appellant Jewish Coalition for Religious Liberty.

Fulton v. City of Philadelphia, 922 F.3d 140 (2019)
Miles Coleman, Nelson Mullins Riley & Scarborough, 104 South Main Street, Suite 900, Greenville, SC 29601, Counsel for Amicus Appellants Mike Enzi, Roy Blunt, John Boozman, Tom Cotton, Ted Cruz, Steve Daines, Tim Scott, James M. Inhofe, James Lankford, James E. Risch, Mike Kelly, Robert Aderholt, Jim Banks, Lou Barletta, Diane Black, Kevin Brady, Kevin Cramer, Jeff Duncan, Neal P. Dunn, Matt Gaetz, Glenn Grothman, Andy Harris, Jody B. Hice, Randy Hultgren, Walter B. Jones, Steve King, Doug Lamborn, Billy Long, Barry Loudermilk, Tom Marino, Mark Meadows, Ralph Norman, Pete Olson, John Ratcliffe, Dana Rohrabacher, Todd Rokita, Keith Rothfus, Steve Russell, Steve Scalise, Christopher Smith, Randy K. Weber, Roger Williams.
Andres M. Picciotti-Bayer, Catholic Association Foundation, 3220 N Street, N.W., Suite 126, Washington, DC 20007, Counsel for Amicus Appellants Former Foster Children & Foster Parents; Catholic Association Foundation.
Leslie Cooper (Argued), James D. Esseks, American Civil Liberties Union, 125 Broad Street, 18th Floor, New York, NY 10004, Fred T. Magaziner, Catherine V. Wigglesworth, Dechert, 2929 Arch Street, Cira Center 18th Floor, Philadelphia, PA 19104, Mary Catherine Roper, Molly M. Tack-Hooper, American Civil Liberties Union of Pennsylvania, P.O. Box 60173, Philadelphia, PA 19106, Counsel for Intervenor-Appellees Philadelphia Family Pride, Support Center for Child Advocates.
Alexander J. Luchenitser, Richard B. Katskee, Americans United for Separation of Church & State, 1310 L Street, NW, Suite 200, Washington, DC 20005, Counsel for Amicus Appellee Americans United for Separation of Church & State
Steven M. Freeman, David L. Barkey, Melissa Garlick, Amy E. Feinman, Anti-Defamation League, 605 Third Avenue, New York, NY 10158, M. Duncan Grant, Alexander L. Harris, Pepper Hamilton, 3000 Two Logan Square, 18th and Arch Streets, Philadelphia, PA 19103, Counsel for Amicus Appellees Anti-Defamation League of Philadelphia, Asian Pacific American Advocates, Bend the Arc a Jewish Partnership for Justice, Hindu American Foundation, Interfaith Alliance Foundation, Japanese American Citizens League, Jewish Social Policy Action Network, Jewish Women International, Keshet, Muslim Advocates, National Council of Jewish Women, People for the American Way Foundation, Sikh Coalition, South Asian Americans Leading Together, Rabbinic Call for Human Rights.
Julie Wilensky, Shannon P. Minter, Catherine Sakimura, National Center for Lesbian Rights, 870 Market Street, Suite 370, San Francisco, CA 94102, Counsel for Amicus

Appellees National Center for Lesbian Rights, Civil Rights Education and Enforcement Center, Disability Rights Advocates, Disability Rights Education and Defense Fund Inc., Equal Justice Society, GLBTQ Legal Advocates and Defenders, Legal Aid at Work, Impact Fund, National Association of the Deaf, National Federation of the Blind, Transgender Law Center.
Cathren I. Cohen, Marshall Currey Cook, Karen Loewy, Lambda Legal, 120 Wall Street, 19th Floor, New York, NY 10005, Counsel for Amicus Appellees Fosterclub, Garden State Equality, Gender and Sexuality Development Clinic of Children’s Hospital of Philadelphia, Human Rights Campaign, Lambda Legal Defense & Education Fund Inc., Mazzoni Center, National LGBTQ Task Force, Pennsylvania Youth Congress Foundation, The Trevor Project, True Colors Fund.
Maura Healey, Attorney General of the Commonwealth of Massachusetts, Elizabeth N. Dewar, State Solicitor, Abigail B. Taylor, Angela R. Brooks, Genevieve C. Nadeau, Office of Attorney General of Massachusetts, One Ashburton Place, McCormack Building 20th Floor, Boston, MA 02108, Counsel for Amicus Appellees State of California, State of Connecticut, State of Delaware, District of Columbia, State of Hawaii, State of Illinois, State of Iowa, State of Maine, State of Maryland, State of Minnesota, State of New Jersey, State of New York, State of Oregon, Commonwealth of Pennsylvania, State of Rhode Island, State of Vermont, State of Washington, Commonwealth of Massachusetts.
Jeffrey S. Trachtman, Norman C. Simon, Tobias B. Jacoby, Jason M. Moff, Elise Funke, Kramer Levin Naftalis & Frankel, 1177 Avenue of the Americans, New York, NY 10036, Counsel for Amicus Appellees Rev. Lavonne Althouse, Dr. Kharma Amos, Rev. Robert Burke, Dr. Randy Bush, Central Atlantic Conference of United Church of Christ, Central Atlantic Conference of American Rabbis, Covenant Network of Presbyterians, Dr. Beverly Dale, Dr. Janet Edwards, Rev. Jean Erb, Evangelical Lutheran Church in American, Rev. Margaret Diane Fisher, Friends for Lesbian Gay Bisexual Transgender and Queer Concerns; Rev. Phillip Geliebter, Rev. Michael Giansiracusa, Rev. Hilary Greer, Rev. Sara Hale, Erin Hirsh, Melford Holldand, Rev. Rebecca Irwin-Diehl, Dr. Elizabeth Kaeton, Rev. Catherin Kerr, Mary Kisner, Dr. Vincent Kolb, Lutherans for Full Participation; Men of Reform Judaism, Rev. Jeffrey Miller, More Light Presbyterians, Muslims for Progressive Values, Rev. Bill Neely, Linda Noonan, Penn Central Conference of United Church of Christ, Penn Northeast Conference of the United Church of Christ, Penn West Conference of United Church of Chris, Pennsylvania Southeast Conference of United Church of

Fulton v. City of Philadelphia, 922 F.3d 140 (2019)
Christ, David Pickett, Rev. William Podobinski, Reconciling Works, Reconstructionist Rabbinical Association, Religious Institute, Serena Rice, Rev. Michael Ruk, Michele Schenk, Rev. Matthew Simpson, Stated Clerk of the General Assembly of Presbyterian Church, Megan Sutker, Stephanie Anne Thompson, Union for Reform Judaism, Unitarian Universalist Association, Rev. Naomi Washington-Leapheart, Amy Welin, Dr. Traci West, Women of Reform Judaism, Rev. Joan Wylie.
Justin Goodyear, Wilmer Cutler Pickering Hale and Dorr, 7 World Trade Center, 250 Greewich Street, New York, NY 10007, Elizabeth Mitchell, Emily L. Stark, Lauren J. Schreur, Wilmer Cutler Pickering Hale and Dorr, 1875 Pennsylvania Avenue, N.W., Washington, DC 20006, Counsel for Amicus Appellees Child Welfare League, National Association of Social Workers, North American Council of Adoptable Children, Voice for Adoption.
Joshua A. Matz, Kaplan Hecker & Fink, 350 Fifth Avenue, Suite 7110, New York, NY 10118, Counsel for Amicus Appellees, Caroline Mala Corbin, Frederick Gedicks, Richard C. Shragger, Micah Schwartzman, Elizabeth Sepper, Nelson Tebbe
Kendyl T. Hanks, Greenberg Traurig, 300 West 6th Street, Suite 2050, Austin, TX 78701, Counsel for Amicus Appellees, Children’s Rights, Barton Child Law & Policy Center, Emory Law School, Center for Children & Youth Justice, Center for Children’s Advocacy, Center for the Study of Social Policy, Center on Children and Families, Children and Family Justice Center, Children’s Action Alliance, Children’s Advocacy Institute, Children’s Defense Fund-New York, Children’s Law Center of California, Children’s Law Center of Kentucky, Children’s Law Center of Minnesota, Coalition for Juvenile Justice, Columbia Legal Services; First Star, Inc., Florida’s Children First, Inc., Harvard Law School Child Advocacy Program, Juvenile Law Center, Lawyers For Children, Legal Counsel for Youth and Children, Legal Services for Children, Professor Bruce A. Boyer, Professor Michael J. Dale, National Center for Youth Law, Nebraska Appleseed, New Mexico Child Advocacy Network, Partners for Our Children, Pegasus Legal Services for Children, Rutgers School of Law Children’s Justice Clinic, University of Miami Children & Youth Law Clinic, Youth Law Center.
Philip E. Karmel, Bryan Cave Leighton Paisner, 1290 Avenue of the Americans, New York, NY 10104, Counsel for Amicus Appellees Family Equality Council, COLAGE.
Before: AMBRO, SCIRICA, and RENDELL, Circuit Judges

OPINION OF THE COURT
AMBRO, Circuit Judge
*146 A reporter from the Philadelphia Inquirer informed the City of Philadelphia’s Department of Human Services in March 2018 that two of its agencies would not work with same-sex couples as foster parents. Human Services investigated this allegation, which it considered a violation of the City’s anti-discrimination laws. When the agencies confirmed that, because of their religious views on marriage, they would not work with gay couples, Human Services ceased referring foster children to them. One of those agencies, Catholic Social Services (sometimes abbreviated to “CSS”), brought this action claiming that the City has violated its rights under the First Amendment’s Free Exercise, Establishment, and Free Speech Clauses, as well as under Pennsylvania’s Religious Freedom Protection Act. It seeks an order requiring the City to renew their contractual relationship while permitting it to turn away same-sex couples who wish to be foster parents. CSS sought preliminary injunctive relief to this effect from the District Court. When it denied the request after a three-day hearing, Fulton v. City of Philadelphia, 320 F.Supp.3d 661 (E.D. Pa. 2018), CSS appealed.
Our question is not whether the City or CSS has behaved reasonably. Nor is our task to mediate a mutually agreeable compromise between the parties.1 It is to determine *147 whether the City’s actions were lawful. Did it have the authority to insist, consistent with the First Amendment and Pennsylvania law, that CSS not discriminate against same-sex couples as a condition of working with it to provide foster care services? Or, inversely, has CSS demonstrated that the City transgressed fundamental guarantees of religious liberty?
At this stage and on this record, we conclude that CSS is not entitled to a preliminary injunction. The City’s nondiscrimination policy is a neutral, generally applicable law, and the religious views of CSS do not entitle it to an exception from that policy. See Emp’t Div. v. Smith, 494 U.S. 872, 877-78, 110 S.Ct. 1595, 108 L.Ed.2d 876 (1990). It has failed to make a persuasive showing that the City targeted it for its religious beliefs, or is motivated by ill will against its religion, rather than sincere opposition

Fulton v. City of Philadelphia, 922 F.3d 140 (2019)
to discrimination on the basis of sexual orientation. Thus we affirm.
I. Background Catholic Social Services is a religious non-profit organization affiliated with the Archdiocese of Philadelphia that provides foster care services in Philadelphia. Created in 1917 as the Catholic Children’s Bureau, it is part of a tradition of caring for children in need that stretches back even further, to the yellow fever outbreak of 1797. As an affiliate of the Catholic Church, CSS sees caring for vulnerable children as a core value of the Christian faith and therefore views its foster care work as part of its religious mission and ministry. When the Catholic Children’s Bureau was founded, foster care was handled on a private basis, but over the following century that changed. Today that care is comprehensively regulated both by the Commonwealth of Pennsylvania and by the City of Philadelphia.
The Commonwealth, the City, and the private foster care agencies each play a role in the Philadelphia foster care system. State regulations set the criteria people or families must meet to become foster parents, as well as the duties of both foster parents and foster care agencies. See 55 Pa. Code § 3700.62 et seq. Those agencies then develop relationships with individual foster families, which begin when a family approaches an agency seeking to become foster parents. It must evaluate the applicants under the Commonwealth’s criteria to determine whether they would be suitable candidates. See 23 Pa. Cons. Stat. § 6344(d); 55 Pa. Code § 3700.64. One criterion concerns the “[e]xisting family relationships, attitudes and expectations regarding the applicant’s own children and parent/child relationship, especially as they might affect a foster child.” 23 Pa. Cons. Stat. § 6344(d)(2)(iv); 55 Pa. Code § 3700.64(b)(1).
When a child in need of foster care comes into the City’s custody, Human Services refers that child to one of the foster care agencies with which it has a contractual relationship. Once the City refers a child to an agency, that agency selects an appropriate foster parent for the child, although Human Services can oppose a child’s placement with a particular foster parent if necessary.
At the outset of this litigation, the City of Philadelphia had contracts with 30 foster care agencies, including CSS. These are one-year contracts renewed on an annual basis. Agencies are compensated by the City for their services; CSS’s contract provided for a per diem rate for each child *148 placed in one of its affiliated foster homes. This

payment did not cover its full expenses, meaning that CSS operated at a loss. The contract required it to certify its foster parents in accord with state regulations, but did not otherwise impose conditions on the certification process. It did, however, include language prohibiting CSS from discriminating due to race, color, religion, or national origin, and it incorporated the City’s Fair Practices Ordinance, which in part prohibits sexual orientation discrimination in public accommodations.
This last requirement, and the parties’ differing understandings of it, led to this controversy. CSS takes the position that it cannot certify a same-sex married couple as foster parents consistent with its religious views. As an affiliate of the Catholic Church, CSS adheres to the belief that marriage is between a man and a woman. It is not unwilling to work with LGBTQ individuals as foster parents. However, state regulations require it to consider an applicant’s “existing family relationships” as part of the certification process. In applying this criterion, CSS will only certify foster parents who are either married or single; it will not certify cohabitating unmarried couples, and it considers all same-sex couples to be unmarried. So far as the record reflects, no same-sex couples have approached CSS seeking to become foster parents.
On March 9, 2018, a reporter from the Philadelphia Inquirer called Human Services and stated that two of the City’s foster care agencies, CSS and Bethany Christian Services, would not work with same-sex couples as foster parents. The Inquirer published an article to this effect on March 13, 2018. In response, the Commissioner of Human Services, Cynthia Figueroa, called officials at both CSS and Bethany Christian asking if this report was true. Both organizations confirmed the report. James Amato, the Secretary of CSS, told Commissioner Figueroa that his agency would not certify same-sex couples because it was against the Church’s views on marriage and, when told this was discrimination, replied that he was merely following the teachings of the Catholic Church. Commissioner Figueroa then called a number of other foster care agencies asking whether they had similar policies; none did. All but one of the other agencies Figueroa called were religiously affiliated. As for the one secular agency, she testified that she had a “good relationship” with its CEO.
Shortly thereafter, Amato attended a meeting with Figueroa in an unsuccessful attempt to resolve the impasse. At this meeting, Amato invoked CSS’s hundred-year history of providing services to the City. Figueroa responded by noting that times had changed over the course of that relationship, that women and African-Americans did not have the same rights when it

Fulton v. City of Philadelphia, 922 F.3d 140 (2019)
started, and that she herself would likely not have been in her position a century earlier. Figueroa, who is Catholic and Jesuit-educated, also remarked to Amato that it would be great if CSS could follow the teachings of Pope Francis. Amato later testified that Figueroa specifically stated that CSS should follow Pope Francis as opposed to the Archdiocese of Philadelphia or its Archbishop Charles J. Chaput; Figueroa denied mentioning anyone other than Pope Francis. Figueroa also indicated to Amato that the matter had the attention of the highest levels of City government, by which she testified she meant herself, her chain of command, and ultimately Mayor James Kenney. She also testified that prior to this meeting she spoke briefly with the Mayor; she told him that she was working to address the issue and would brief him after more decisions had been made.
*149 Immediately after his meeting with Figueroa, Amato received a phone call from a representative of Human Services who informed him that it would no longer refer new foster children to CSS, a policy known as an “intake freeze.”2 Figueroa testified that she implemented the freeze because of her serious concern that CSS’s relationship with Human Services might end in the near future. Given the preference for stability in placing foster care children, she did not want to send any new children to an agency they might well have to leave in a matter of months. This was not the first time Human Services had instituted an intake freeze out of a concern that it might not be able to continue working with a given agency. The freeze nonetheless did not affect children already placed with CSS.
Nor did it affect other aspects of CSS’s relationship with the City. Family foster care is only one component of Philadelphia’s framework for at-risk children. The City also employs private agencies to operate “congregate care” facilities, or group homes, for children in state custody who have not been assigned to a foster family for one reason or another. And it partners with “Community Umbrella Agencies” that work with children in the community to address problems in their home environment that might prevent them from remaining at home. CSS operates as a congregate care provider and a Community Umbrella Agency, and its services in those capacities were not affected by the intake freeze or any subsequent developments in this dispute pertaining to foster care. Indeed, in each unrelated area it continues working with the City to this day.
On several occasions Human Services granted exceptions to the intake freeze where there were particularly strong reasons why CSS would be the best placement for an individual child—for example, if one of that child’s siblings had already been placed with a CSS family. It

does not appear that any exemption requests were denied.
Meanwhile, on March 15, 2018, two days after the Inquirer article, the City Council passed a resolution authorizing the Philadelphia Commission on Human Relations to “investigate Department of Human Services’ policies on contracting with social services agencies that ... discriminate against prospective LGBTQ foster parents.” The resolution stated that “the City of Philadelphia has laws in place to protect its people from discrimination that occurs under the guise of religious freedom,” and declared that any “agency which violates City contract rules in addition to the Fair Practices Ordinance should have their contract with the City terminated with all deliberate speed.” The following day (March 16), lawyers for the Commission wrote to CSS with a battery of questions regarding its policies about working with same-sex couples or LGBTQ individuals. It responded on April 16, 2018, challenging both the legal basis for what it termed the “City’s unlawful suspension” of its contract and the Commission’s jurisdiction over the matter. Centrally, CSS argued that its screening of would-be foster parents was not a public accommodation and hence not subject to the Fair Practices Ordinance.
Lawyers from the City wrote back separately on the jurisdictional and substantive points on May 7, 2018. As to substance, the City asserted that its contract with CSS had not been formally suspended, and that *150 it did not require any referrals to that agency. Therefore the City could not possibly have breached the contract by suspending referrals. The letter noted several provisions of the contract that, it argued, forbade CSS’s policy of discrimination.
After setting out the City’s legal interpretation of the contract, the letter stated its plan going forward:
Please also note that CSS’s current contract expires on June 30, 2018, and the City is under no legal obligation to enter into a new contract for any period thereafter. We are hopeful that we can work out any differences before then, but please be advised that—except where the best interests of a child demands otherwise—the City does not plan to agree to any further referrals to CSS, and the City intends to assist with the transition of foster families to other agencies, absent assurances that CSS is prepared to adhere to its contractual

Fulton v. City of Philadelphia, 922 F.3d 140 (2019)
obligations and, in implementing its City contract, to comply with all applicable laws, including those related to non-discrimination. We believe our current contract with CSS is quite clear that this is our right, but please be advised that any further contracts with CSS will be explicit in this regard.
The letter underscored “respect [for CSS’s] sincere religious beliefs, but your freedom to express them is not at issue here where you have chosen voluntarily to partner with us in providing government-funded, secular social services.” It stressed the importance of equality as “both a legal requirement, and an important City policy and value that must be embodied in our contractual relationships.” In addition, the City reaffirmed that it did not want to see its “valuable relationship with CSS ... come to an end,” but instead hoped that CSS would agree to comply going forward with the terms of the Fair Practices Ordinance.
As to jurisdiction, the City further asserted that foster care is a public accommodation, triggering both the Ordinance’s mandate and the Commission’s jurisdiction. The City requested a response to the questions in its March 16 letter within 10 days and threatened subpoenas if CSS did not comply. The latter responded by filing this lawsuit, alleging 16 causes of action against the City, Human Services, and the Human Relations Commission. Three individuals who had worked with CSS as foster parents—Sharonell Fulton, Cecilia Paul,3 and Toni Lynn Simms-Busch—were also listed as plaintiffs.4 On June 5, 2018, *151 plaintiffs moved for a temporary restraining order and preliminary injunction. Their proposed order would have required the City to “resume providing foster care referrals to [CSS] and permitting children to be placed with the foster families it has certified without delay,” to “rescind its prior directive prohibiting any foster care referrals to [CSS,] ... to resume all dealings with [it] on the same terms as they had proceeded prior to March 2018,” and also to “resume and to continue operating under the current Contract, without breach, termination, or expiration, or to enter into a new Contract identical in all material respects to the current Contract, while this matter remains pending.” Doc. #13-1 to Fulton et al. v. City of Philadelphia et al., 320 F.Supp.3d 661 (E.D. Pa. 2018). (As noted below, that contractual arrangement has lapsed in any event.)
The District Court promptly held a hearing on plaintiffs’ motion for preliminary injunctive relief. The hearing, which spanned three days, included testimony from plaintiffs Simms-Busch, Paul, and Fulton, as well as from

Amato,5 Deputy Commissioner of Human Services Kimberly Ali, Commissioner Figueroa, and Frank Cervone, a child advocate who testified as an expert witness.6 (It was after this hearing that lawyers for the City informed the Court that it had resumed foster care operations with Bethany Christian when the latter agreed to cease discriminating against same-sex couples.)
The District Court denied the application for preliminary injunctive relief in a memorandum opinion, and plaintiffs appealed the same day. They argue to us that the District Court wrongly held that they were not likely to succeed on the merits of their Free Exercise, Establishment Clause, and Freedom-of-Speech claims, as well as under the Pennsylvania Religious Freedom Protection Act. Plaintiffs asked the District Court for injunctive relief pending appeal the following day, which it denied.
Plaintiffs—now appellants—also sought from our Court emergency injunctive relief pending appeal under Federal Rule of Appellate Procedure 8. We denied the motion by order.
Finally, appellants filed an emergency application to the Supreme Court for an injunction pending appeal or an immediate grant of certiorari. Justice Alito referred the application to the full Court, which denied it. Fulton v. City of Philadelphia, ––– U.S. ––––, 139 S.Ct. 49, 201 L.Ed.2d 1127 (2018).
II. Jurisdiction and Standard of Review The District Court had jurisdiction under 28 U.S.C. § 1331. Our jurisdiction to *152 review the District Court’s denial of a preliminary injunction stems from 28 U.S.C. § 1292(a)(1).
Ordinarily, when reviewing a district court’s ruling on a motion for preliminary injunctive relief, we review findings of fact for clear error, conclusions of law de novo, and the ultimate decision to grant or deny preliminary relief for abuse of discretion. Reilly v. City of Harrisburg, 858 F.3d 173, 176 (3d Cir. 2017). Because this case implicates First Amendment interests, however, we do not rely on the normal clear-error standard for factual review, but instead conduct an independent examination of the record as a whole. Brown v. City of Pittsburgh, 586 F.3d 263, 268–69 (3d Cir. 2009). Thus we defer to the District Court’s factual findings only insofar as they concern witness credibility. Tenafly Eruv Ass’n, Inc. v. Borough of Tenafly, 309 F.3d 144, 156–57 (3d Cir. 2002).

Fulton v. City of Philadelphia, 922 F.3d 140 (2019)
When evaluating a motion for preliminary injunctive relief, a court considers four factors: (1) has the moving party established a reasonable likelihood of success on the merits (which need not be more likely than not); (2) is the movant more likely than not to suffer irreparable harm in the absence of preliminary relief; (3) does the balance of equities tip in its favor; and (4) is an injunction in the public interest? Winter v. Natural Res. Def. Council, Inc., 555 U.S. 7, 20, 129 S.Ct. 365, 172 L.Ed.2d 249 (2008); Reilly, 858 F.3d at 179. If a plaintiff meets the first two requirements, the District Court determines in its sound discretion whether all four factors, taken together, balance in favor of granting the relief sought. Id.

III. Discussion

A. The Free Exercise Clause CSS principally contends that the City’s actions violated its rights under the Free Exercise Clause. The First Amendment provides that “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof.” This prohibition applies to the States through the Fourteenth Amendment. See Cantwell v. Connecticut, 310 U.S. 296, 303, 60 S.Ct. 900, 84 L.Ed. 1213 (1940). Per Employment Division v. Smith, 494 U.S. 872, 877, 110 S.Ct. 1595, 108 L.Ed.2d 876 (1990), the Free Exercise Clause “means, first and foremost, the right to believe and profess whatever religious doctrine one desires.”

Thus, the First Amendment

obviously

excludes

all

governmental regulation of

religious beliefs as such. The

government may not compel

affirmation of religious belief,

punish the expression of doctrines

it believes to be false, impose

special disabilities on the basis of

religious views of religious status,

or lend its power to one or the other

side in controversies over religious

authority or dogma.

Id. (internal citations and question marks omitted) (emphasis in original). Likewise, it forbids government acts specifically designed to suppress religiously

motivated practices or conduct. Id. at 877–78, 110 S.Ct. 1595.
The Free Exercise Clause does not, however, “relieve an individual of the obligation to comply with a ‘valid and neutral law of general applicability on the ground that the law proscribes (or prescribes) conduct that his religion prescribes (or proscribes).’ ” Id. at 879, 110 S.Ct. 1595 (quoting United States v. Lee, 455 U.S. 252, 263 n.3, 102 S.Ct. 1051, 71 L.Ed.2d 127 (1982) (Stevens, J., concurring in the judgment) ). As Justice Felix Frankfurter stated nearly eighty years ago, “[c]onscientious scruples have not, in the course of the long struggle for religious toleration, relieved the individual *153 from obedience to a general law not aimed at the promotion or restriction of religious beliefs.” Id. at 879, 110 S.Ct. 1595 (quoting Minersville Sch. Dist. Bd. of Educ. v. Gobitis, 310 U.S. 586, 594–95, 60 S.Ct. 1010, 84 L.Ed. 1375 (1940) (Frankfurter, J.) ). Among other things, this means that religious or conscientious objections do not supersede the basic obligation to comply with generally applicable civil rights laws provided those laws are applied neutrally. See Masterpiece Cakeshop, Ltd. v. Colo. Civil Rights Com’n, ––– U.S. ––––, 138 S.Ct. 1719, 1727, 201 L.Ed.2d 35 (2018) (“Nevertheless, while ... religious and philosophical objections [to same-sex marriage] are protected, it is a general rule that such objections do not allow business owners and other actors in the economy and in society to deny protected persons equal access to goods and services under a neutral and generally applicable public accommodations law.”); see also Christian Legal Soc’y Chapter of the Univ. of Cal., Hastings Coll. of the Law v. Martinez, 561 U.S. 661, 694 n.24, 130 S.Ct. 2971, 177 L.Ed.2d 838 (2010) (observing that, under Smith, the Free Exercise Clause did not require public law school to grant religious exemption to its “all-comers” policy forbidding discrimination by student organizations).
CSS contends that the City’s enforcement of its laws and policies was neither neutral nor generally applicable. It first argues that the City’s reliance on the Fair Practices Ordinance, which prohibits discrimination on the basis of sexual orientation in public accommodations, is misplaced because evaluating prospective foster parents is not a public accommodation.7 The District Court disagreed and held that the Ordinance did apply to CSS. We need not address this issue, however, as the contract between CSS and the City expired on June 30, 2018. As a result, requiring the City to comply with the terms of that agreement is now moot. What remains is whether it may insist on the inclusion of new, explicit language forbidding discrimination on the ground of sexual orientation as a condition of contract renewal, or whether

Fulton v. City of Philadelphia, 922 F.3d 140 (2019)
it must offer CSS a new contract that allows it to continue engaging in its current course of conduct.8
To support its claim that the City’s proposed anti-discrimination clause is not permissible under Smith, CSS invokes cases where courts have found ostensibly neutral government action unconstitutional because it was motivated by ill will toward a *154 specific religious group or otherwise impermissibly targeted religious conduct. See, e.g., Masterpiece Cakeshop, ––– U.S. ––––, 138 S.Ct. 1719, 201 L.Ed.2d 35; Church of the Lukumi Babalu Aye, Inc. v. City of Hialeah, 508 U.S. 520, 113 S.Ct. 2217, 124 L.Ed.2d 472 (1993). These cases, and similar decisions by our Court, clarify Smith by reaffirming that the government may not conceal an impermissible attack on religion behind a cloak of neutrality and general application. Thus, a challenger under the Free Exercise Clause must show that it was treated differently because of its religion. Put another way, it must show that it was treated more harshly than the government would have treated someone who engaged in the same conduct but held different religious views.
The focus on different treatment of religious and secular conduct is clear in Lukumi, the font of this doctrine. There the City of Hialeah, Florida had adopted an ordinance prohibiting the slaughtering of animals except in certain recognized circumstances. The history of the law’s adoption made plain, however, that this was no earnest piece of animal welfare legislation but rather an attempt to suppress the practice of Santeria, a fusion of traditional African religion and Catholicism that developed in Cuba in the Nineteenth Century and incorporates animal sacrifice in many of its rituals. Lukumi, 508 U.S. at 524, 113 S.Ct. 2217. The emergency sessions that led to the ordinance, held immediately after a Santeria church first tried to open in town, were rife with unrestrained hostility. Council members referred to supposed Biblical prohibitions on animal sacrifice except for consumption and asked “What can we do to prevent the Church from opening?” Id. at 541, 113 S.Ct. 2217. The audience cheered these remarks and taunted the president of the Church, plus the chaplain of the city police department called Santeria “an abomination to the Lord.” Id. at 541–42, 113 S.Ct. 2217.
Moreover, the ordinance itself, though ostensibly concerned with animal welfare, plainly reflected this hostility. Its restriction on animal killing was limited to “sacrifice,” and was further limited to the context of “a public or private ritual or ceremony.” Id. at 527, 113 S.Ct. 2217. Although it did not apply if the killing was “for the primary purpose of food consumption,” or if the animals were “specifically raised for food purposes,” the

ordinance did apply to ritual sacrifice even if the animal was eaten during the ritual, as would often happen in Santeria rituals. Id. at 527–28, 113 S.Ct. 2217. As the Court noted, the “net result” of these definitions was that “few if any killings of animals are proscribed other than Santeria sacrifice. ... Indeed, careful drafting ensured that, although Santeria sacrifice is prohibited, killings that are no more necessary or humane in almost all other circumstances are unpunished.” Id. at 536, 113 S.Ct. 2217. This “gerrymander” of the ordinance, id., along with the striking hostility at the public meetings, left the Court with only “one conclusion: The ordinances had as their object the suppression of religion.” Id. at 542, 113 S.Ct. 2217.
Masterpiece Cakeshop featured similar demonstrations of religious animosity and differing treatment of religious conduct.9 Denver baker Jack Phillips refused to make a cake for a gay couple’s wedding reception, citing his religious conviction that marriage is only the union of a man *155 and a woman. Phillips believed that, were he “to create a wedding cake for an event that celebrates something that directly goes against the teachings of the Bible, [it] would have been a personal endorsement and participation in the ceremony and relationship that they were entering into.” Masterpiece Cakeshop, 138 S.Ct. at 1724. The couple sued under Colorado’s public accommodations statute. The case was referred to the state’s Civil Rights Commission, which concluded that Phillips had engaged in prohibited discrimination and that neither Phillips’s religious free exercise nor his free speech rights were violated by applying this anti-discrimination law to him.
The Supreme Court ultimately reversed; while Colorado generally had the right to enforce its civil rights laws against Phillips, it was bound under the First Amendment to afford him a “neutral and respectful consideration.” Id. at 1729. Instead, the Commission expressed open hostility toward Phillips and his religion and treated him differently from others similarly situated because of that religion. The Court noted ambiguous expressions from commissioners that could be taken either as reflecting resentment toward Phillips’s religious views or simply the uncontroversial principle that “a business cannot refuse to provide services based on sexual orientation, regardless of” those views. Id. (“One commissioner suggested that Phillips can believe ‘what he wants to believe,’ but cannot act on his religious beliefs ‘if he decides to do business in the state.’ A few moments later, the commissioner restated the same position: ‘If a businessman wants to do business in the state and he’s got an issue with the—the law’s impacting his personal belief system, he needs to look at being able to compromise.’ ”) (internal citations omitted).

Fulton v. City of Philadelphia, 922 F.3d 140 (2019)
These ambiguous statements were more sinister, however, in the context of another commissioner’s naked hostility toward religion.
Freedom of religion and religion ha[ve] been used to justify all kinds of discrimination throughout history, whether it be slavery, whether it be the Holocaust, whether it be—I mean, we—we can list hundreds of situations where freedom of religion has been used to justify discrimination. And to me it is one of the most despicable pieces of rhetoric that people can use to—to use their religion to hurt others.
Id. This, the Court noted, disparaged Phillips’s religion “in at least two distinct ways: by describing it as despicable, and also by characterizing it as merely rhetorical—something insubstantial and even insincere.” Id. By calling religion the “most despicable” way to justify hurting others, the comment also suggested that the commissioner thought Phillips’s actions were worse specifically because of their religious character.
The inference that Phillips was treated worse because of his religion was bolstered by the Commission’s different treatment of other bakers who refused to bake cakes bearing homophobic expressions. The state Civil Rights Division found that these actions did not violate the state’s civil rights laws because the requested message was offensive in nature. Id. at 1730–31. Thus it appeared that the state had “treated the other bakers’ conscience-based objections as legitimate, but [Phillips’s] as illegitimate—thus sitting in judgment of his religious beliefs themselves.” Id. at 1730.
Our Court’s Free Exercise Clause jurisprudence in the wake of Smith and Lukumi likewise asks whether challengers have been treated worse than others who engaged in similar conduct because of their religious character. For example, in *156 Fraternal Order of Police Newark Lodge No. 12 v. City of Newark, 170 F.3d 359 (3d Cir. 1999), we held unconstitutional the Newark Police Department’s policy that officers could not have facial hair. The Department had granted exceptions to this policy due to medical need, but would not grant similar exceptions to Sunni Muslims whose religion forbade them to shave their beards. Id. at 360. This was “sufficiently

suggestive of discriminatory intent ... to trigger heightened scrutiny[,]” id. at 365, which the policy could not survive.
Similarly in Tenafly Eruv Association v. Borough of Tenafly, 309 F.3d 144 (3d Cir. 2002), the Borough of Tenafly had on its books an ordinance prohibiting the affixing of “any sign or advertisement, or other matter upon,” among other things, telephone poles. Id. at 151. In practice, this ordinance was almost never enforced, and it was common to see house number signs, lost animal signs, commemorative ribbons, holiday displays, wreaths, and various other fixtures on the town’s telephone poles. But when Orthodox Jewish residents sought to erect an eruv by placing lechis on utility poles,10 the Borough refused to grant them a similar exemption and sought to enforce the ordinance. We held that the Borough thereby violated the Free Exercise Clause. Although the ordinance itself was general and neutral, such that Smith might apply, it had not been enforced evenhandedly. Instead, the Borough had an apparent practice of granting ad hoc exceptions but refused to make one for the Orthodox Jews’ religious practice. This system of discretionary exemptions called for strict scrutiny (meaning they must be justified by a compelling government interest and narrowly tailored to achieve that compelling interest), and the Borough’s actions could not survive.
These cases have in common that religiously motivated conduct was treated worse than otherwise similar conduct with secular motives. The ordinance in Lukumi was pretzeled to prohibit only Santeria ritual sacrifices and no other animal killings, even those no more humane or necessary. In Fraternal Order of Police the City of Newark granted exemptions to its facial hair policy for medical reasons but not for religious ones. In Tenafly an ordinance virtually never enforced was exacted exclusively on the religious practice of Orthodox Jews. And in Masterpiece the comments of Commission members, along with the disparate treatment of other bakers’ secular claims of conscience, raised suspicion that Phillips had been treated more harshly because the Commission found his religious views offensive.
The question in our case, then, is whether CSS was treated differently because of its religious beliefs. Put another way, was the City appropriately neutral, or did it treat CSS worse than it would have treated another organization that did not work with same-sex couples as foster parents but had different religious beliefs? Based on the record before us, that question has a clear answer: no. The City has acted only to enforce its non-discrimination policy in the face of what it considers a clear violation.
As evidence that the City acted out of religious hostility,

Fulton v. City of Philadelphia, 922 F.3d 140 (2019)
CSS first points to the City Council’s resolution authorizing the Commission on Human Relations’ inquiry, which stated that “Philadelphia has laws *157 in place to protect its people from discrimination that occurs under the guise of religious freedom.” But this comment falls into the grey zone identified by the Supreme Court in Masterpiece—a remark that could express contempt for religion or could merely state the well-established legal principle that religious belief will not excuse compliance with general civil rights laws. Unlike the commissioner in Masterpiece who suggested that religious justifications for discrimination are merely rhetorical, here City officials repeatedly emphasized that they respected CSS’s beliefs as sincere and deeply held. The Commission’s May 7, 2018 letter, for instance, stated that “[w]e respect your sincere religious beliefs, but your freedom to express them is not at issue here where you have chosen voluntarily to partner with us in providing government-funded, secular social services.” This is the kind of respectful consideration found lacking in Masterpiece, and nowhere in the record did the City depart from this respectful posture.
CSS next points to Commissioner Figueroa’s statements during her meeting with Amato that “it would be great if we could follow the teachings of Pope Francis.” Taken out of context, some might think this remark improper, as it has clear religious overtones. But context is important: the comment was made during a negotiation attempting to find a mutually agreeable solution to this controversy. In that light, Figueroa’s statement is best viewed as an effort to reach common ground with Amato by appealing to an authority within their shared religious tradition. The First Amendment does not prohibit government officials working with religious organizations in this kind of partnership from speaking those organizations’ language and making arguments they may find compelling from within their own faith’s perspective. And though these attempts to persuade CSS were ultimately unsuccessful, the record does not suggest that the City then sought to punish it for this disagreement.
CSS also argues that Commissioner Figueroa’s decision to call mostly religious foster care agencies to ask if they had a similar policy is evidence that the City impermissibly targeted religion. But focusing her inquiries on religious agencies made sense: the only agencies Figueroa knew that refused to work with same-sex couples—CSS and Bethany Christian—did so for religious reasons. She had little reason to think that nonreligious agencies might have a similar policy. In fact, no other religious agency besides the two mentioned by the reporter had this policy, and Figueroa did call one secular agency as well.

Finally, CSS points to several public statements (the most recent of which occurred in 2015) made by Mayor Kenney critical of the Archdiocese of Philadelphia and of Archbishop Chaput. No doubt the Mayor expressed concerns toward the local Catholic Church, with a particular focus on the Church’s stance on gay rights. But CSS’s claim that he “prompted” Human Services’ 2018 inquiry in this case misstates the record. Figueroa testified that she discussed the issue with the Mayor prior to meeting with Amato and told the Mayor she would brief him once a decision had been made. There is nothing in the record before us suggesting that he played a direct role, or even a significant role, in the process.
The evidence CSS offers of religious bias or hostility appears significantly less than what was present in Lukumi or even in Masterpiece. Nor is there much to suggest that the City treated CSS differently because of its religion. It argues that it has been subject to selective enforcement, akin *158 to that in Tenafly and Fraternal Order of Police, because the City adopted what CSS sees as novel legal arguments invented during this controversy to justify its actions against CSS. First, it claims that the City had never previously taken the position that the Fair Practices Ordinance applies to the screening of foster parents. But nothing before us suggests that the City took this position disingenuously or as a pretext for persecuting CSS. Its interpretation of the Ordinance, with which the District Court agreed, was hardly frivolous. Nor is it suspicious that the City had never previously taken this position: the record contains no evidence of any foster care agencies discriminating in ways that would violate the Fair Practices Ordinance prior to this controversy. The issue simply seems not to have come up previously.
Second, CSS argues that the City created what CSS calls a “must-certify policy” as a justification for the actions against it. The City’s position, according to CSS, is that foster agencies must at least evaluate any applicants who come to them seeking to become foster parents rather than referring them to a different agency—although agencies would retain their discretion whether to certify an applicant as fit after evaluation. CSS perceives that the City would object to any referral, and it argues that this was a novel position adopted during this controversy. Amato testified that referrals from one agency to another are a routine way of finding the best fit for a given applicant. But the record here is unclear, both as to the City’s current position and as to its policy prior to this case. The former is not necessarily an objection to any referrals at all so much as an objection to referrals made for an improper basis, i.e., that the referring agency refuses to work with members of a protected class. As to the latter, the referrals Amato described may have only involved an agency suggesting that a family might prefer

Fulton v. City of Philadelphia, 922 F.3d 140 (2019)
a different agency rather than refusing to work with a particular applicant outright. It would be consistent for the City to insist that, while agencies are free to inform applicants if they believe a different agency would be a better fit, they must leave the ultimate decision up to the applicants. In any case, this dispute does not indicate improper religious hostility on the City’s part, only a routine regulatory disagreement.
Third, CSS argues that the City has acted inconsistently because Human Services will consider factors such as race or disability when placing foster children with foster parents. But there are many differences between CSS’s behavior and the City’s consideration of race or disability when placing a foster child. Most significantly, unlike CSS, Human Services never refuses to work with individuals because of their membership in a protected class. Instead it seeks to find the best fit for each child, taking the whole of that child’s life and circumstances into account.11 And there is no instance in the record of Human Services knowingly permitting any other foster agency to discriminate against members of a protected class.
In sum, at the preliminary injunction stage CSS shows insufficient evidence that the City violated the Free Exercise Clause. The Fair Practices Ordinance has not been gerrymandered as in Lukumi, and there is no history of ignoring widespread secular violations as in Tenafly or *159 the kind of animosity against religion found in Masterpiece. Here the City has been working with CSS for many decades fully aware of its religious character. It continues to work with CSS as a congregate care provider and as a Community Umbrella Agency even to this day despite CSS’s religious views regarding marriage. And the City has expressed a constant desire to renew its relationship with CSS as a foster care agency if it will comply with the City’s non-discrimination policies protecting same-sex couples.
CSS sees the City’s non-discrimination policy as a pretext to exclude it from public life because of its religious character, and invokes Trinity Lutheran Church of Columbia v. Comer, ––– U.S. ––––, 137 S.Ct. 2012, 198 L.Ed.2d 551 (2017), in which the Supreme Court held unconstitutional rules excluding religious organizations from a public grant program. CSS’s counsel at oral argument described the proposed contract language expressly forbidding discrimination on the basis of orientation as a “poison pill.” Tr. of Oral Arg. at 61. CSS likewise states in its brief that “[t]he City thus proposes to change its foster care contract specifically to prohibit [CSS’s] religious exercise.” Appellant’s Reply Br. at 3. But it can point to no specific evidence demonstrating that the City acted other than out of a sincere commitment to

equality and non-discrimination.
CSS’s theme devolves to this: the City is targeting CSS because it discriminates against same-sex couples; CSS is discriminating against same-sex couples because of its religious beliefs; therefore the City is targeting CSS for its religious beliefs. But this syllogism is as flawed as it is dangerous. It runs directly counter to the premise of Smith that, while religious belief is always protected, religiously motivated conduct enjoys no special protections or exemption from general, neutrally applied legal requirements. That CSS’s conduct springs from sincerely held and strongly felt religious beliefs does not imply that the City’s desire to regulate that conduct springs from antipathy to those beliefs. If all comment on religiously motivated conduct by those enforcing neutral, generally applicable laws against discrimination is construed as ill will against the religious belief itself, then Smith is a dead letter, and the nation’s civil rights laws might be as well. As the Intervenors rightly state, the “fact that CSS’s non-compliance with the City’s non-discrimination requirements is based on its religious beliefs does not mean that the City’s enforcement of its requirements constitutes anti-religious hostility.” Intervenor’s Br. at 22.
We thus believe the District Court did not abuse its discretion in finding that CSS has failed to demonstrate a sufficient likelihood of success on the merits of its Free Exercise Clause claim.
B. The Establishment Clause CSS argues that the City’s actions violated not only the First Amendment’s Free Exercise Clause but also its Establishment Clause. “The clearest command of the ... [Establishment] Clause is that one religious denomination cannot be officially preferred over another.” Larson v. Valente, 456 U.S. 228, 244, 102 S.Ct. 1673, 72 L.Ed.2d 33 (1982). In this case, the two Religion Clauses largely run together: insofar as CSS alleges that it has been blacklisted for its religious beliefs, it is alleging both a Free Exercise violation (persecution for its religious views) and an Establishment Clause violation (the City declaring some religious viewpoints favored and others disfavored).
Insofar as the Establishment claim here is analytically independent of the Free Exercise claim, CSS contends the City has dictated its preferred religious viewpoint—that *160 religious institutions should recognize the marriage of same-sex couples—and has conditioned CSS’s future contract on adherence to that perspective. See, e.g., Lee v. Weisman, 505 U.S. 577, 588, 112 S.Ct. 2649, 120

Fulton v. City of Philadelphia, 922 F.3d 140 (2019)
L.Ed.2d 467 (1992) (prayer at public high school graduation violated the First Amendment, in part because the government not only chose the clergyman but imposed guidelines on the composition of his prayer). To support this claim it focuses primarily on Commissioner Figueroa’s statement in her meeting with Amato that “it would be great if we could follow the teachings of Pope Francis.” CSS sees this as the City telling it which religious leaders to follow and how to interpret their teachings, and then “punishing” it when it refused to comply. See Appellant’s Br. at 38–40.
If the City truly were punishing CSS for refusing to adopt its preferred view of Catholic teaching, no doubt that would be an impermissible establishment of religion. But that is not what happened here. Human Services still works with CSS as a congregate care provider and a Community Umbrella Agency. It still works with Bethany Christian as a foster care agency, even though Bethany also maintains its religious opposition to same-sex marriage. This supports the view that CSS is not being excluded due to its religious beliefs. Indeed, the City has maintained its other relationships with CSS and has merely insisted that, if CSS wants to continue providing foster care, it must abide by the City’s non-discrimination policy in doing so. There is simply no evidence that this is a veiled attempt to coerce or impose certain religious beliefs on CSS.
The District Court thus did not abuse its discretion in finding that CSS has not shown a likelihood of success on the merits of its Establishment Clause claim.
C. Freedom of Speech In addition to its claims under the First Amendment’s Religion Clauses, CSS also claims that the City has violated its freedom-of-speech rights in two different ways: by compelling it to speak in ways it finds disagreeable and by retaliating against it for engaging in protected speech.
i. Compelled Speech For over 70 years it has been axiomatic that the Free Speech Clause also protects the right not to speak. See W. Va. Bd. of Educ. v. Barnette, 319 U.S. 624, 634, 63 S.Ct. 1178, 87 L.Ed. 1628 (1943) (“To sustain the compulsory flag salute we are required to say that a Bill of Rights which guards the individual’s right to speak his own

mind, left it open to public authorities to compel him to utter what is not in his mind.”). CSS claims it has been compelled to speak because Pennsylvania law imposes a requirement that, after evaluating prospective foster parents, an agency must “give written notice to foster families of its decision to approve, disapprove or provisionally approve the foster family.” 55 Pa. Code § 3700.69. Because the City forbids CSS from finding an applicant unqualified for a “discriminatory reason,” including their sexual orientation or same-sex relationship, it is therefore forcing CSS “to make written endorsements that violate its sincere religious beliefs.” Appellant’s Br. at 53.
The problem with this argument is that the ostensibly compelled speech occurs in the context of CSS’s performance of a public service pursuant to a contract with the government. In Rust v. Sullivan, 500 U.S. 173, 111 S.Ct. 1759, 114 L.Ed.2d 233 (1991), the Supreme Court upheld conditions on government grants under Title X of the Public Health Service Act preventing grant programs from providing to their *161 patients not only abortion services but also counseling or information about abortion. Id. at 193–200, 111 S.Ct. 1759. The Court held that this was not an impermissible restriction on speech or viewpoint discrimination because the government is free to fund only those programs that comport with its own view on matters such as abortion.
Agency for International Development v. Alliance for Open Society International, 570 U.S. 205, 133 S.Ct. 2321, 186 L.Ed.2d 398 (2013) (“AOSI”), clarified this rule by holding that, while the government may place conditions on the use of public grant monies, it may not require grant recipients to adopt the government’s views as their own. Thus, the requirement that organizations receiving money to combat HIV/AIDS not use that money “to promote or advocate the legalization or practice of prostitution or sex trafficking,” 22 U.S.C. § 7631(e), was acceptable under Rust. But the rule that no funds could be used by any organization “that does not have a policy explicitly opposing prostitution and sex trafficking,” id. § 7631(f) (emphasis added), unconstitutionally compelled speech. It did not simply tell grant recipients how to use the government’s money, but required them to affirm their own agreement with the government’s policy—not unlike the requirement in Barnette that schoolchildren recite the Pledge of Allegiance.
CSS argues that it has been required to adopt the City’s views about same-sex marriage and to affirm these views in its evaluations of prospective foster parents, and that this violates the rule of AOSI. It contends that the speech in question is beyond the scope of its contract with the City because the requirement of performing evaluations

Fulton v. City of Philadelphia, 922 F.3d 140 (2019)
comes from state law rather than from the contract itself, and because the compensation formula in the contract is not tied to the number of evaluations performed. We disagree. The speech here only occurs because CSS has chosen to partner with the government to help provide what is essentially a public service. The exact allocation of responsibility between the Commonwealth and the City, or the funding structure in the contract, does not change that. Neither Rust nor AOSI, nor any other relevant precedent, focused on the precise funding structure of the government contracts at issue. Instead, the cases focus on whether the condition pertains to the program receiving government money, as the City’s non-discrimination requirements do here.
The City would violate AOSI if it refused to contract with CSS unless it officially proclaimed its support for same-sex marriage. But to the contrary, the City is willing to work with organizations that do not approve of gay marriage, as its continued relationship with Bethany Christian, its continued relationship with CSS in its other capacities, and its willingness to resume working with CSS as a foster care agency attest. It simply insists that CSS abide by public rules of nondiscrimination in the performance of its public function under any foster-care contract. Therefore CSS’s compelled speech claim does not at this time have a reasonable likelihood of success, and the District Court did not abuse its discretion in so holding.

confirming that it would not work with same-sex couples as foster parents.
This claim is unlikely to succeed because the City’s actions were regulatory rather than retaliatory in nature. The speech retaliation doctrine is implicated where the government has taken some action against an individual ostensibly unrelated to that individual’s protected speech yet motivated by a desire to retaliate. See, e.g., Eichenlaub, 385 F.3d at 282–85 (approving retaliation claim alleging that the Township denied building permit applications to punish a landowner’s speech at a public meeting). Here, on the contrary, the City has directly regulated the very conduct CSS claims is constitutionally protected: its refusal to evaluate or work with same-sex couples. Thus the City has “retaliated” against CSS only in the same way enforcement of any government regulation “retaliates” against those who violate it.
Insofar as CSS claims it was subject to retaliation for its statements to the Inquirer and to Human Services confirming that it engages in the discriminatory conduct to which the City objects, this too cannot support a valid retaliation claim. We do not read the City’s actions as punishing CSS for those statements rather than for the discriminatory conduct itself. Once again, the District Court did not abuse its discretion in ruling that CSS has failed to establish a reasonable likelihood of success on its speech retaliation claim.

ii. Speech Retaliation To prevail on a speech retaliation claim, a plaintiff must show that it engaged in constitutionally protected activity, that the government responded with retaliation, and that the protected activity caused the retaliation. See Eichenlaub v. Township of Indiana, 385 F.3d 274, 282 (3d Cir. 2004). This rule is a straightforward application of the First Amendment’s basic command that the government may *162 not punish those who utter protected speech. Where the plaintiff is a government employee, additional considerations come into play, and the plaintiff’s speech is only protected if it occurred in his or her capacity as a citizen rather than as a public employee. See Garcetti v. Ceballos, 547 U.S. 410, 421, 126 S.Ct. 1951, 164 L.Ed.2d 689 (2006).
CSS argues that it provides foster care services as a religious ministry protected by the First Amendment and that it “engages in protected speech when it evaluates families” as potential foster parents. Id. It also asserts retaliation against it for statements made to the Inquirer, and for its subsequent statements to Human Services

D. The Pennsylvania Religious Freedom Protection Act CSS’s final claim is under the Pennsylvania Religious Freedom Protection Act (RFPA), 71 Pa. Stat. Ann. § 2401 et seq. Similar in some ways to the federal Religious Freedom Restoration Act, 42 U.S.C. § 2000bb et seq., the RFPA generally provides that “an agency shall not substantially burden a person’s free exercise of religion, including any burden which results from a rule of general applicability.” It may do so, however, if it proves by a preponderance of the evidence that the burden both is “(1) [i]n furtherance of a compelling interest of the agency” and is “(2) [t]he least restrictive means of furthering the compelling interest.” 71 Pa. Stat. Ann. § 2404. “Substantially burden” is defined as an action that does any of the following:
(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

Fulton v. City of Philadelphia, 922 F.3d 140 (2019)
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.
Id. § 2403. CSS argues that all four forms of substantial burden exist here. Its argument as to each prong ultimately rests on this: CSS’s foster care work is part of its *163 religious ministry, its religious convictions prevent it from “endorsing” same-sex marriage, and under the City’s policies it may not engage in its foster care ministry while abiding by its convictions. Thus, CSS must choose either endorsing a viewpoint that violates the tenets of its faith or ceasing its religious ministry of providing foster care.
Pennsylvania courts applying the RFPA scrutinize claims of religious burden to see whether the burdened activity is truly “fundamental to the person’s religion.” See, e.g., Commonwealth v. Parente, 956 A.2d 1065, 1074 (Pa. Commw. Ct. 2008) (“Parente never testified that his activities ... constitute ‘activities which are fundamental to his religion’ .... Rather, at best, Parente’s testimony merely establishes that he engaged in these activities based upon his religious beliefs or that they flowed from a religious mission.”).12
In Ridley Park United Methodist Church v. Zoning Hearing Board Ridley Park Borough, 920 A.2d 953 (Pa. Commw. Ct. 2007), for instance, the Pennsylvania Commonwealth Court held that a church was not entitled to a RFPA exemption from a local zoning code in order to operate a daycare center on its property. While the daycare center “aided in carrying out the Church’s religious mission,” it was not a “fundamental religious activity of a church.” Id. at 960. By analogy, “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.” Id. Thus it appears that Pennsylvania courts consider an activity “fundamental to a person’s religion” if it is an inherently religious activity as opposed to something that could be done either by a religious person or group or by a secular one. The parallel here is direct: caring for vulnerable children can flow from a religious mission, but it is not an intrinsically religious activity under Pennsylvania law.
It thus seems unlikely that the Pennsylvania courts would recognize a substantial burden on CSS’s exercise of religion in this case. We have noted before, however, that this facet of RFPA jurisprudence “appears to create some tension between state and federal law,” as the “Supreme

Court has cautioned against making religious interpretations in the First Amendment context.” Combs v. Homer-Center Sch. Dist., 540 F.3d 231, 258 (3d Cir. 2008) (Scirica, J., concurring); see also Smith, 494 U.S. at 886–87, 110 S.Ct. 1595 (“It is no more appropriate for judges to determine the ‘centrality’ of religious beliefs ... in the free exercise field ... than it would be for them to determine the ‘importance’ of ideas ... in the free speech field.”).
Thus we make clear that even if we were to assume there is a substantial burden here, CSS is not likely to prevail on its RFPA claim because the City’s actions are the least restrictive means of furthering a compelling government interest. It is black-letter law that “eradicating discrimination” is a compelling interest. See Roberts v. U.S. Jaycees, 468 U.S. 609, 623, 104 S.Ct. 3244, 82 L.Ed.2d 462 (1984). And mandating compliance is the least restrictive means of pursuing that interest. See Hobby Lobby, 573 U.S. at 733, 134 S.Ct. 2751 (“The Government has a compelling *164 interest in providing equal opportunity to participate in the workforce without regard to race, and prohibitions on racial discrimination are precisely tailored to achieve that critical goal.”); see also E.E.O.C. v. R.G. & G.R. Harris Funeral Homes, Inc., 884 F.3d 560, 594 (6th Cir. 2018) (denying several alternative means of enforcing the government’s interest in preventing discrimination against transgender employee in favor of simply enforcing the ban on that discrimination).13
CSS offers several reasons why the City has no compelling interest in enforcing the Fair Practices Ordinance here. First, it asserts that evaluating potential foster parents is not a public accommodation. Second, it calls the harm the City seeks to prevent speculative, citing Brown v. Entertainment Merchants Association, 564 U.S. 786, 799–800, 131 S.Ct. 2729, 180 L.Ed.2d 708 (2011), for the principle that “ambiguous proof” of speculative harms will not suffice to provide a compelling interest. Finally, it argues that the City cannot have a compelling interest in preventing it from discriminating because doing so will not increase the number of foster agencies willing to work with same-sex couples: either the City allows CSS to continue discriminating, in which case there are 29 agencies willing to work with those applicants, or it ceases operation altogether, in which case there will still be 29 agencies willing to work with those applicants.
These arguments miss the mark entirely. The government’s interest lies not in maximizing the number of establishments that do not discriminate against a protected class, but in minimizing—to zero—the number of establishments that do. And that interest is by no means

Fulton v. City of Philadelphia, 922 F.3d 140 (2019)
limited to public accommodations as defined by the Fair Practices Ordinance. Thus, even if we were to assume that evaluating potential foster parents is not a public accommodation, the City would still have a compelling interest in adding a nondiscrimination provision to future contracts.
Nor is the harm the City seeks to prevent speculative. Brown held that a law restricting violent video games, on the theory that they would make children become more violent, could not be sustained, in part due to the lack of sound empirical support for this theory. See 564 U.S. at 800–01, 131 S.Ct. 2729. This has no application here, where the mere existence of CSS’s discriminatory policy is enough to offend the City’s compelling interest in anti-discrimination. CSS notes that no same-sex couples have ever—so far as the record reflects—approached it seeking to become foster parents. This is not surprising given the Philadelphia Archdiocese’s well-known opposition to gay marriage. But this is beside the point. The harm is not merely that “gay foster parents will be discouraged from fostering.” Appellant’s Br. at 63. It is the discrimination itself.
So even if CSS could show a substantial burden on its religious exercise as defined by the RFPA, the City’s actions appear to survive strict scrutiny. Thus the District *165 Court did not abuse its discretion in determining that CSS has not established a reasonable likelihood of success on the merits of its RFPA claim.
E. Other Preliminary Injunction Considerations We conclude, as the District Court did, that at the preliminary injunction stage and on the record before us, CSS is not reasonably likely to succeed on the merits of any of its claims. This alone defeats the request for a preliminary injunction. See Reilly, 858 F.3d at 179. In any event, we also agree with the District Court that CSS has not met the other factors considered for a preliminary injunction.
To prevail, CSS must show not only a reasonable likelihood of success but also that it is more likely than not to suffer irreparable harm without an injunction. It identified several alleged irreparable harms before the District Court, but on appeal it wisely focuses on the prospect that, without a contract from the City, it will go out of business. Arguably even this would be compensable through money damages. Cf. Lehigh Valley Cmty. Mental Health Ctrs., Inc. v. Pa. Dep’t of Human Servs., 2015 WL 6447171 at *3 (E.D. Pa. 2015) (finding that the threat of going out of business did not qualify as

an irreparable injury). In any case, CSS has not met its burden of demonstrating that it is more likely than not to suffer this injury. Its congregate care and Community Umbrella Agency functions are unaffected, it has other foster care contracts with neighboring counties, and even as to its foster care services in Philadelphia CSS cites only to Amato’s self-professed “guess” that it would have to cease those operations within months.
Even if CSS could establish both of the gatekeeping factors—likelihood of success on the merits and irreparable harm—neither the balance of the equities nor the public interest would favor issuing an injunction here. The District Court set out at length the City’s interests in requiring CSS to abide by its nondiscrimination policy, see Fulton v. City of Philadelphia, 320 F.Supp.3d at 703–04, and we agree that the City’s interests weigh substantially in its favor—particularly in ensuring that government services are open to all Philadelphians. Placing vulnerable children with foster families is without question a vital public service, no doubt why there are 29 other foster care agencies, including Bethany Christian, that provide this service. Deterring discrimination in that effort is a paramount public interest.
F. Conclusion The City stands on firm ground in requiring its contractors to abide by its non-discrimination policies when administering public services. Under Smith, the First Amendment does not prohibit government regulation of religiously motivated conduct so long as that regulation is not a veiled attempt to suppress disfavored religious beliefs. And while CSS may assert that the City’s actions were not driven by a sincere commitment to equality but rather by antireligious and anti-Catholic bias (and is of course able to introduce additional evidence as this case proceeds), the current record does not show religious persecution or bias. Instead it shows so far the City’s good faith in its effort to enforce its laws against discrimination.
Hence we hold that the District Court did not abuse its discretion in denying the motion for preliminary injunctive relief and affirm its thorough and well-reasoned decision.
All Citations
922 F.3d 140

Fulton v. City of Philadelphia, 922 F.3d 140 (2019)
Footnotes

1

That being said, District Judge Tucker commented that she “would prefer that the [p]arties seek ... some

compromise to their current dispute without court intervention.” Id. at 667. We agree, especially given the long and

constructive relationship between the parties.

2

This intake freeze also affected Bethany Christian, although, as noted below, Bethany has since worked out an

agreement with the City and has resumed receiving foster care referrals.

3

Ms. Paul died during the pendency of this action. She fostered children for over 40 years, taking into her home more

than 100 children, and personally adopting six. In 2015, the City of Philadelphia recognized her as the “Outstanding

Foster Parent of the Year.” Thomas Paul, adopted son of Ms. Paul, “believes he was raised by a living saint.” Brief of

Amici Curiae Former Foster Children and Foster Parents and the Catholic Association Foundation at 4.

4

We have doubts whether the individual plaintiffs have standing to bring this complaint, as the City took no direct

action against them. Any harms to the individual plaintiffs were the consequence of the City’s actions against CSS.

See Kowalski v. Tesmer, 543 U.S. 125, 130, 125 S.Ct. 564, 160 L.Ed.2d 519 (2004) (party seeking to assert the rights of

others must show (1) a “close” relationship with the one who possesses the right, and (2) some “hindrance” to the

possessor’s ability to assert its own rights). But the issue of standing was not raised, and the limits on third-party

standing are not a matter of our constitutional jurisdiction under Article III but rather “stem from a salutary ‘rule of

self-restraint.’ ” Craig v. Boren, 429 U.S. 190, 193, 97 S.Ct. 451, 50 L.Ed.2d 397 (1976) (quoting Barrows v. Jackson,

346 U.S. 249, 255, 73 S.Ct. 1031, 97 L.Ed. 1586 (1953) ). In any event, the individual plaintiffs claim only that the City

violated the Constitution by taking action against CSS. Hence we may safely analyze this case solely in terms of

whether CSS’s rights have been violated.

5

At the hearing, Amato mentioned a CSS policy of which the City had been previously unaware, namely that CSS

required would-be foster parents to submit a so-called “pastoral letter” from a religious figure (of any faith or

denomination) certifying that they were actively religious, regularly attended services, etc. The City took issue with

this policy, arguing that it violated both CSS’s contract with the City and the Establishment Clause of the First

Amendment to the federal Constitution. CSS then informed the Court that, while it did not believe the “pastoral

letter” requirement violated any applicable laws, it would abandon that requirement going forward “in order to

eliminate any potential issue regarding how the parties would operate under a preliminary injunction.”

6

Plaintiffs contested the propriety of Cervone’s testimony, as he had signed legal papers in the case on behalf of the

Center for Child Advocates, an organization seeking to intervene in the case (ultimately successfully), and Cervone

had not yet withdrawn that appearance. In any event his testimony is not important to the issues on appeal.

7

CSS makes a similar argument toward what it calls the City’s “must-certify” policy, which it claims was the second

basis for the City’s actions in addition to the Fair Practices Ordinance. CSS asserts that the City had never enforced

such a policy before this dispute. The City, meanwhile, disclaims the policy’s existence, and says that it was solely

enforcing its longstanding rules against discrimination. But as noted above, because the existing contract between

CSS and the City has expired, we need not address whether any “must-certify” policy was a sufficiently neutral,

general rule to support the City’s actions. (See below for a fuller discussion of the dispute over the “must-certify”

policy as it relates to the City’s motivation.)

8

It should be noted that the remedy CSS seeks—an injunction forcing the City to renew a public services contract

with a particular private party—would be highly unusual. CSS cites several affirmative action cases where courts

granted equitable relief to government contractors, such as Adarand Constructors, Inc. v. Pena, 515 U.S. 200, 115

S.Ct. 2097, 132 L.Ed.2d 158 (1995). But the injunctions in those cases merely forbade government entities from

enforcing their express affirmative action policies going forward. See id. at 210, 115 S.Ct. 2097. We have some

Fulton v. City of Philadelphia, 922 F.3d 140 (2019)

doubt, therefore, that CSS could be entitled to the relief it seeks. We do not rest our decision on that ground, however, as it involves novel and complex questions of remedies law, and instead address the merits of CSS’s claims.

9

Unlike Lukumi, where the impermissible hostility toward Santeria was apparent during the adoption of the animal

sacrifice ordinance, in Masterpiece it came out in the conduct of the officials charged with executing the law.

10 An eruv is a ceremonially created space outside of the home wherein Orthodox Jews may engage in the otherwise proscribed activities of pushing and carrying objects on the Sabbath. This can be done by placing lechis, thin black strips made of hard plastic and nearly identical to the coverings on ordinary ground wires, on utility poles to mark the boundaries of the eruv. 309 F.3d at 152.

11 The issue of race in foster care and adoption is notoriously thorny and complex, and is the subject of considerable scholarly literature. See, e.g., PACT: An Adoption Alliance, Biracial, Multiracial, Interracial Identity in Adoption (accessed March 11, 2019), http://www.pactadopt.org/resources/biracial-multiracial-adoption-identity.html (collecting scholarly articles).

12 This is different than the federal Religious Freedom Restoration Act and Supreme Court jurisprudence, which does not delve into investigating a person’s religious beliefs. See, e.g., Burwell v. Hobby Lobby Stores, Inc., 573 U.S. 682, 724, 134 S.Ct. 2751, 189 L.Ed.2d 675 (2014) (“Arrogating the authority to provide a binding national answer to this religious and philosophical question, HHS and the principal dissent in effect tell the plaintiffs that their beliefs are flawed. For good reason, we have repeatedly refused to take such a step.”).

13 Note that this “strict scrutiny” test under RFPA is different from the strict scrutiny that would apply under Lukumi, Fraternal Order of Police, and Tenafly if Catholic Social Services were able to demonstrate religious targeting or enforcement disparities. In the latter case, we would examine not the general interest behind the City’s anti-discrimination laws but the specific interest in the different enforcement of those laws against religious and secular groups. See Tenafly, 309 F.3d at 172 (applying strict scrutiny to the Town’s justifications for treating lechis differently from those violations of the ordinance it had long tolerated). That would be a more difficult burden for the City to bear than under the RFPA, where the question is simply the weight of the government’s interest in enforcing its anti-discrimination laws generally.

 
 No. 19-123
Inthe SupremeCourtofthe United States
SHARONELL FULTON,ETAL., Petitioners,
v. CITYOFPHILADELPHIA,PENNSYLVANIA,ETAL.
Respondents.
On Writ of Certiorari tothe U.S.CourtofAppealsfortheThirdCircuit
Brief Amicus Curiae ofProfessorEugeneVolokhinSupportof
Neither Party
EUGENE VOLOKH Counsel of Record FIRSTAMENDMENT CLINIC UCLA SCHOOL OF LAW 405 Hilgard Ave. Los Angeles, CA 90095 (310) 206-3926 volokh@law.ucla.edu CounselforAmicusCuriae

i
Table of Contents
TableofContents.........................................................i TableofAuthorities....................................................ii InterestoftheAmicusCuriae....................................1 SummaryofArgument...............................................1 Argument....................................................................4 I. Smithshouldbepreserved,becausea
regimeofconstitutionally mandated religiousexemptionswouldrepeatthe mistakesofsubstantivedueprocess ...................4 II. Acceptingreligiousexemptionsunder RFRAsisconsistentwithrejectingthem undertheFreeExerciseClause.........................12 III.Strictscrutinyisimproperforreligious accommodationclaims,eventhoughitis usedastonarrowerrights.................................16 IV.Smithshouldbeappliedevenwhenalaw containssecularexemptions..............................23 Conclusion.................................................................30

ii
Tableof Authorities
Cases
Adairv.UnitedStates,208 U.S.161(1908).............11 Adkinsv. Children’s Hospital,261 U.S.525
(1923)........................................................................7 AmericanLifeLeague,Inc.v.Reno,47F.3d
642(4thCir.1995).................................................20 Atchison,Topeka, &SantaFe Ry. Co. v.
Vosburg,238 U.S.56(1915)..................................28 Blackhawk v. Pennsylvania, 381 F.3d 202
(3dCir.2004)..........................................................27 BoyScoutsofAmericav.Dale,530 U.S.640
(2000)......................................................................18 Brandenburgv.Ohio,395 U.S.444(1969)...............18 BridgePublications,Inc.v.Vien,827F.
Supp.629(S.D.Cal.1993).....................................26 Burwellv.HobbyLobbyStores,Inc.,573
U.S.682(2014).........................................................8 ChurchoftheLukumiBabaluAye,Inc.v.
Cityof Hialeah,508U.S.520(1993).........24,27,30 CityofBoernev.Flores,521 U.S.507(1997)......4,7,8 Clarkv.CommunityforCreative Non-
Violence,468 U.S.288(1984)................................21 Coppagev.Kansas,236 U.S.1(1915).......................11 Dole v. Shenandoah Baptist Church, 899
F.2d1389(4thCir.1990).........................................8 Eastern R.R. Presidents Conference v. Noerr
MotorFreight,Inc.,365 U.S.127(1961)...............18

iii
Employment Divisionv.Smith,494 U.S.872 (1990)..............................................................passim
Fair HousingCouncilv.Roommate.com, LLC,666F.3d1216(9thCir.2012).......................12
Fraternal OrderofPolicev.Cityof Newark, 170F.3d359(3dCir.1999)...................................23
Gonzalez v. O Centro Espírita Beneficente UniãodoVegetal,546 U.S.418(2006)....................3
Gulf, Colo. & Santa Fe Ry. Co. v.Ellis,165 U.S.150(1897).......................................................28
Holder v.HumanitarianLawProject,561 U.S.25(2010).........................................................16
Holt v.Hobbs,574U.S.352(2015)...........................27 Hurley v.Irish-AmericanGay,Lesbian &
Bisexual GroupofBoston,Inc.,515 U.S. 557(1995)...............................................................18 Hustler Magazine,Inc. v.Falwell,485U.S. 46(1988).................................................................18 InreCrisisConnection,Inc.,949 N.E.2d789 (Ind.2011)..............................................................16 InreDoe,842F.2d244(10thCir.1988)...................26 InreGrandJuryEmpanelingofSpecial GrandJury,171F.3d826(3dCir.1999)..............26 In re Greenberg, 11 Fed. R. Evid. Serv. 579 (D.Conn.1982).......................................................26 Larsonv.Valente,456 U.S.228(1982).....................30 Lawrencev.Texas,539 U.S.558(2003)......................9

iv
LouisvilleGas &Elec.Co.v.Coleman,277 U.S.32(1928).........................................................29
Maryland v.Craig,497U.S.836(1990)...................16 Masterpiece Cakeshop, Ltd. v.Colorado Civ.
Rts.Comm’n,138S.Ct.1719(2018).....................18 MembersoftheCityCouncil v.Taxpayersfor
Vincent,466 U.S.789(1984)..................................21 NAACP v.Alabamaexrel.Patterson,357
U.S.449,460-61(1958)..........................................19 NAACPv.Claiborne HardwareCo.,458
U.S.886(1982).......................................................18 Peoplev.Ray,417P.3d939(Colo.Ct.App.
2018).......................................................................26 Peoplev.Williams,811 N.E.2d1197(Ill.Ct.
App. 2004) ................................................................. 9 Peoplev.Woodruff,26A.D.2d236(1966).................26 Portv.Heard,764F.2d423(5thCir.1985).............26 RailwayExpressAgencyInc.v.N.Y.,336
U.S.106(1949).......................................................29 Robertsv.UnitedStatesJaycees,468 U.S.
609(1984)...............................................................11 Rumsfeldv.FAIR,547 U.S.47(2006)......................21 Smilowv.UnitedStates,465F.2d802(2d
Cir.1972)................................................................26 Snyderv.Phelps,562 U.S.443(2011)......................18 Statev.Bing,253S.E.2d101(S.C.1979).................26 Statev.Elise, No.1CA-CR16-0373,2018
WL5729354(Ariz.Ct.App.Nov.1) ......................10

v
Telescope Media Group v.Lucero,936 F.3d 740(8thCir.2019).................................................18
Tony &SusanAlamoFoundationv. SecretaryofLabor,471 U.S.290(1985)..................8
Tracyv.Hahn,No.90-56223,1991 WL 148926(9thCir.Aug.6).........................................10
TrinityLutheranChurchofColumbia,Inc. v.Comer,137S.Ct.2012(2017)...........................30
Truaxv.Corrigan,257 U.S.312(1921)....................29 UnitedStates v.Huss,482F.2d38(2dCir.
1973).......................................................................26 UnitedStates v.O’Brien,391 U.S.367
(1968)......................................................................21 UnitedStates v.Thomas, No.CRIM.A.92-
119-01,1998 WL633981(Aug.24,1998)..............26 UrantiaFound. v.Maaherra,895F.Supp.
1329(D.Ariz.1995)...............................................26 Vaccov.Quill,521 U.S.739(1997).............................6 WestCoast HotelCo.vParrish,300U.S.379
(1937)....................................................................7,9 Williamson v.LeeOpticalofOkla.,Inc.,348
U.S.483(1955).......................................................29
Statutes
17 U.S.C.§§106,107-122....................................15,26 42 U.S.C.§2000bb-3(b).............................................14 42 U.S.C.§6928(f)(4).................................................14 42 U.S.C.§7413(c)(5)(D)...........................................14

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42 U.S.C.§§2000e(b),2000e-1(b).............................27 Cal.Civ.Code§43.5(West1982).............................14 Cal.Evid.Code§§950-1063(West1995).................25 Fed.R.Evid.501........................................................14 Fla.Stat.Ann.§761.05(4).........................................14 Ind.Stats.§34-13-9-0.7............................................14 Tex.Civ.Prac. &RemediesCode§§110.011...........14
Other Authorities
114Cong.Rec.2495,3345(1968).............................12 ChristopherL.Eisgruber &Lawrence G.
Sager, The Vulnerability of Conscience: TheConstitutionalBasisforProtecting ReligiousConduct,61 U.Chi.L.Rev.1245 (1994)........................................................................8 Neil Gorsuch, TheFutureofAssistedSuicide ch.7.3 &7.4(2006)..................................................6 Jennifer Hunter,Sacred Prostitution, Contemporary,in2 Melissa Hope Ditmore,EncyclopediaofProstitutionand Sex Work(2006)......................................................10 Leah Hyslop,India’s‘ProstitutesofGod’, Telegraph(UK),Sept.20,2010.............................10 ThomasJefferson,NotesontheStateof Virginia(WilliamPedened.,1955).......................22 DouglasLaycock,TheBroaderImplications of MasterpieceCakeshop,2019BYUL. Rev.167..................................................................28

vii
DouglasLaycock,TheRemnantsofFree Exercise,1990Sup.Ct.Rev.1...............................23
AbrahamLincoln,Complete Works(JohnG. Nicolay&John Hayeds.,1907)............................30
Ira C. Lupu, The Trouble with Accommodation,60Geo. Wash.L.Rev. 743 (1992) ................................................................. 9
James Madison,LettertoEdward Livingston(July10,1822),in9The WritingsofJames Madison 100(Gaillard Hunted.,1901).......................................................22
Michael W. McConnell,FreeExercise RevisionismandtheSmith Decision,57 U. Chi.L.Rev.1109(1990).....................................9,22
Restatement(Second)ofTorts§197(1)(a)................25 Ankur Shingal, The Devadasi System:
TempleProstitutioninIndia,22 UCLA Women’sL.J. 107(2015)........................................10 EricaSmith-Klocek,A HalachicPerspective ontheParent-ChildPrivilege,39Cath.L. 105(1999)...............................................................26 EugeneVolokh,ACommon-Law Modelfor ReligiousExemptions,46UCLAL.Rev. 1465(1999).........................................................1,11

1
InterestoftheAmicusCuriae1 Eugene Volokhisthe Gary T. Schwartz Distinguished Professor of Law at UCLA School of Law, wherehespecializesinFirst Amendmentlaw.Heis oneofthefewacademics whosupportstheReligious FreedomRestorationActanditsstateanalogs, while alsobelievingEmployment Divisionv.Smithwas correctlydecided.See Eugene Volokh, A Common-Law ModelforReligiousExemptions,46UCLAL.Rev.1465 (1999).
SummaryofArgument 1. Justice Scalia wasright: Courtsshould not be constantly“inthebusinessofdeterminingwhetherthe ‘severeimpact’ofvariouslawsonreligiouspractice” suffices to justify “constitutionally required religious exemptions”fromagenerallyapplicablelaw.Employment Division v.Smith,494 U.S.872,888,889n.5 (1990).“[I]tis horribletocontemplatethatfederal judges willregularlybalanceagainsttheimportance ofgenerallawsthesignificanceofreligiouspractice”in determining whethertheConstitution mandatesan exemptionfromageneralstatelaw.Id. Indeed,overrulingSmithwouldrevivealltheflaws ofabroadsubstantivedueprocessregime:Itwouldrequirecourtstoroutinelyanddefinitivelysecond-guess legislativejudgmentsaboutthenormativebasesfora
1Nocounselforapartyauthoredthisbriefinwholeorinpart, nordidanypersonorentity,otherthanamicusorhisemployer (UCLA),contribute moneyforpreparingorsubmittingthisbrief. Thepartieshaveconsentedtothefilingofthisbrief.

2
widerangeoflaws,andaboutthelaws’ practicalnecessity.
Forinstance,shouldpeoplehavearighttoassisted suicide?ThisCourtinWashington v.Glucksberg,521 U.S.702(1997),refusedtorecognizesucharightunder substantive due process, and upheld an assisted suicidebanundertherationalbasistest.ButifSmith wereoverruled,anyperson whofeelsareligiousobligationtoassistinsuicidewouldtriggertheverysort ofstrictscrutinyinquirythatGlucksberg forecloses.
Likewise,thisCourthasrejectedheightenedscrutinyofeconomicregulations,suchas minimum wage laws.ButifSmithwereoverruled,aperson who feels a religious obligation to hire people but for less than minimumwagewould beentitledtoanexemption,unlesstheregulationpassesstrictscrutiny.Andthelist could go on.
Ofcourse,itisappealingtoprotectreligiously motivatedbehaviorthatdoesnotreallyhurtanyone.But what constitutes “hurting anyone” is a hotly contested issue,asthisverycaseshows.Itiscontestednormatively.(Shouldrefusingtodealwithasame-sexcouple qualifyashurtingthem?Ispayingpeopleasupposedly “exploitative”wage,even with theirconsent, hurting them?)Anditiscontestedpractically.(Wouldallowing assisted suicide end up pressuring people into choosingdeathevenifthey wouldrathernot?)ThisCourt’s rejection of a general right to liberty under the rubric ofsubstantivedueprocesswiselyrecognizesthatthese questionsshouldultimatelybelefttothepoliticalprocess.
2.Tobesure,normativeandpragmaticjudgments aboutwhichactionshurtothersarefamiliartocourts.

3
Muchofthecommonlawoftort,contract,and property reflectssuchjudgments.
But such decisions are only tentative, because they canbeoverruledbylegislatures.Judgeshavethefirst wordonthese matters,butnotthelast.That makes common-lawdecisionmakinglegitimateevenwhenaggressive use of substantive due process would not be.
Indeed,decisionmakingunderRFRAsisinthisrespectsimilartosuchcommon-lawdecisionmaking.BecauseRFRAs(stateorfederal)aremere statutes,they givejudgesauthoritytocreateexceptions,butsubject topossiblerevisionbylegislatures.
Thus,forinstance,thisCourtconcludedinGonzalesv. O Centro Espírita Beneficente União do Vegetal that,ineffect,hoascawasnotsoharmfulastojustify denyinganexemptionrequest,546 U.S.418(2006)— butifCongresshaddisagreed,itcouldhaveexempted thehoascabanfromRFRA,andthushadthelastword onthesubject. Butif Smith were overruled,this Court’sestimateofharmwouldhavebeenfinal,unrevisablewithoutaconstitutionalamendment.
3. Some substantiveconstitutionalrights dorequirecourtstoevaluatethenormativeandpragmatic justification for restrictions on those rights, and the testinthosecasesoftenisstrictscrutiny. ButSmith wascorrectin concludingthatclaimsofthoserights arequitedifferentfromclaimsofreligiousexemptions, 494U.S.at885-86.Thoserightsrequiresecond-guessinglegislativejudgmentsonlyforspecific,well-defined zones of regulation (e.g.,content-based speech restrictions), wheresuchjudicialdecisionmakingisespeciallyjustified.Overruling Smith would require

4
courtstoconsideroverridinglegislativedecisionsasto avastrangeofgenerallyapplicablelaws.
4.NorshouldthisCourtlimit Smithtolawsthat lacksecularexceptions.Alawcanbegenerallyapplicableifitdoesnotsingleoutreligiousbehaviorforspecialburdens,evenifitdoesincludeexceptionsforcertain kinds of secular behavior. Indeed, a vast range of importantlawshave manyexceptions—trespasslaw, thedutytotestify,antidiscriminationlaw,copyright law,contractlaw,and manyothers.
5. This brieftakes no position on whether statementsofgovernmentofficialsandtheshiftinglegalbasisforthegovernment’sactions mayindicatethatthe Cityof Philadelphia singledout Catholic Social Servicesfordifferenttreatmentonthebasisofreligion. Pet. Br.23-25.Thebriefarguesonlythatthis Court shouldreaffirmtheSmithprinciplethat,absentsuch intentionaldiscrimination,theFree Exercise Clause doesnotprovideapresumptiveconstitutionalrightto religiousexemptionsfromgovernmentactions.2
Argument I. Smith should be preserved,because are-
gimeofconstitutionally mandatedreligious exemptions would repeat the mistakes of substantive due process Fromthelate1800stonow,litigantshaveurged courts to recognize broad protectionforindividual
2Astotheoriginal meaningoftheFreeExerciseClause,amicusisinclinedto agree withJustice Scalia’s analysis inCity of Boernev.Flores,521 U.S.507(1997),buthasnothingtoaddon thesubjectandwillthusleaveittoothers.

5
liberty,oftenundertherubricof“substantivedueprocess.” People should have a constitutional right to do whattheyplease,thetheorygoes,solongastheydo notharmothers.ThisCourt,however,haslargelyrejectedsuchclaims,outsideanarrowandcontroversial rangeofspecificcategoriesofbehavior, mostlyfocused onfamilylifeandsexualautonomy.
And this rejection has been wise, because what constitutes“harming others”issocontested. Different peoplehavedifferentnormativeviewsaboutwhether, say,discriminationharmsothers,or whethervarious employmentpracticesharmevenostensiblyconsenting employees. They also have different pragmatic viewsaboutwhichbehaviorcausestangibleharm,and whether such effects could be avoided in less restrictive ways.Theonlylegitimate waystofinallyresolve these controversies, this Court has concluded, is through the political process.
Take,forexample,theassertedrighttoassistedsuicide.InWashington v.Glucksberg,this Courtconcludedthattheclaimedrightdoesnotfall withinthe narrow“rightofprivacy,”in whichjudicialjudgment prevailsoverlegislativejudgment.521 U.S.702,73135(1997).Astatehasthediscretiontodecidethat“all persons’ lives,from beginningtoend,regardlessof physical or mental condition,” oughtto beprotected. Id.at729.Andastatemay conclude,evenwithoutconclusiveproof,thatanylegalallowanceforassistedsuicide wouldcreatetheriskthatsome“disadvantaged persons mightbepressuredintophysician-assistedsuicide,”id.at731,sothatassistedsuicidewouldleadto thedeathsofthereluctantandnotjustofthose who genuinelyseekdeath.Cf.NeilGorsuch,TheFutureof

6
AssistedSuicidech.7.3&7.4 (2006)(pointingtosuch practical risks).
Nor did this Court havetoitselfdecide whether thesenormativeandpracticaljudgmentsweresound: “Weneednot weighexactinglytherelativestrengths ofthesevariousinterests.”Id.at735. Rather,itconcludedthatthebanshouldbeevaluatedonlyunderthe rationalbasistest,leavingthekeydecisionstothelegislature,notthejudiciary.Id.at728.
ButsayadoctorclaimsaGoodSamaritanreligious obligation to assist the suicide of a patient whose life haslost whatthe patient considersto bethe proper dignity. Orsayapatientclaimsareligiousreasonto endhislifewithadoctor’shelp.3
Under aconstitutionalregimewheredenialsofreligiousexemptionshadtobejudgedunderstrictscrutiny,justas underthe now-rejectedexpansivesubstantive due process doctrine, courts would have to do what Glucksberg correctly concludedcourts should not.Theywouldhaveto decide whether,normatively, thestate’sinterestsinpreservinghumanlifeextends topeople whoseektodie,and whoarealreadysufferingfromaterminalillness. Andtheywouldhaveto decide whether, practically,the risk ofpeople being pressuredintoassistedsuicidecanbeavoidedbyvariouscontroversiallessrestrictive means(suchashavingdoctorsdeterminewhetherthepatient’sdecisionis
3Forexamplesofsimilarclaims,seeSandersonv.People,12 P.3d851(Colo. Ct. App.2000);Briefof36 Religious Organizations,Leaders,andScholarsasAmicusCuriaeinSupportofRespondents,Vacco v.Quill,521 U.S.739(1997)(No.95-1858); Washington v.Glucksberg,521U.S.702(1997)(No.96-110).

7
trulyvoluntary,seeGlucksberg,521U.S.at 785-86 (Souter,J.,concurringinthejudgment)).
Overruling Smith would thusrequire courts to makethesame normativeandpragmaticdeterminationsthisCourtresolvedtoavoidinGlucksberg.Tobe sure,thosedeterminations wouldonlybe madefor thoseclaimants whohaveareligiousreasonfortheir claims. Buttherecouldbe manyofthose,especially onceitbecomesclearthatareligiousreasoncanturn defeatintovictory. Andinanyevent,thepremiseof Glucksberg isthatthisCourtshouldnotsecond-guess thenormativeandpracticaljudgmentsoflegislatures onsuch matters,whetherforallclaimantsoronlyfor some.
Overruling Smithwouldalsoshiftsuchjudgments fromstatestothefederalgovernment,andnotjust fromthelegislaturetothejudiciary.Statesmayquite rightlyreachdifferentresultsonsuchnormativeand practical questions, as indeed they have on assisted suicidesinceGlucksberg.Indeed,preservingfederalismwasthisCourt’smain concerninCityofBoernev. Flores,whichinvalidatedthefederalRFRAasapplied to the states, and led many states to enactstate RFRAs.521 U.S.507,534(1997).Requiringreligious exemptionsfromgenerallyapplicablelawsunderthe FreeExerciseClausewouldbeanevengreaterfederal intrusion.
Orconsider minimumwagelaws.InAdkinsv.Children’s Hospital,261 U.S.525(1923),theCourthelda minimum wagelawunconstitutionalbecauseitviolatedtheemployer’slibertyofcontract. ButinWest Coast Hotel Co.vParrish,300 U.S.379,398(1937),

8
this Court reversedcourse onthis, concludingthat suchdecisions mustbeforlegislatures,notcourts.
YetreadingtheFreeExerciseClauseaspresumptively mandating religious exemptions would put courtsbackinthesamebusiness.Say,forinstance, thatareligiousemployerclaimsthathehasareligious obligationtotrytohiretheunemployed,butonlyata wagethatreflectstheemployee’sactualvaluetothe employer, which mightbebelowthestatutory minimum.(A claimofanemployee’sreligiousdutynotto complywith minimum-wagelawwasinfactraisedin Tony &SusanAlamoFoundationv.SecretaryofLabor, 471 U.S. 290(1985). This Court disposed ofthe casebyconcludingthattheparticularclaimantscould obeythelaw withoutviolatingtheirparticularreligiousbeliefs,id.at304-05,butsucharesultwas made possibleonlybythespecificnatureofthoseclaimants’ beliefs.)
Theemployer’sclaimofexemptionfrom minimum wagelaw wouldhavetobejudgedunderstrictscrutiny,aneven moredemandingtestthanthisCourtappliedinLochner-eracasessuchasAdkins.Perhapsthe law mightpassstrictscrutiny.SeeDolev.Shenandoah Baptist Church, 899 F.2d 1389, 1398-99 (4th Cir. 1990). Orperhapsnot,especiallynowthatthisCourt hasreadstrictscrutinyas“exceptionallydemanding,” Burwellv.HobbyLobbyStores,Inc.,573 U.S.682,728 (2014),somethingitseemednottodoastotheFree ExerciseClauseevenbeforeSmith.4
4 See,e.g., ChristopherL. Eisgruber &Lawrence G.Sager, TheVulnerabilityofConscience:TheConstitutionalBasisforProtecting ReligiousConduct,61 U.Chi.L.Rev.1245,1247(1994)

9 Butinanyevent, overrulingSmithwouldrequire strict scrutiny of ordinary economic regulations, so longassomeoneobjectedtothemon Free Exercise Clausegrounds.Andcourtswouldthenbeobligatedto rejectWest Coast Hotel Co.’ssoundadmonitionthat, “Evenifthewisdomofthepolicyberegardedasdebatable and its effects uncertain, still the legislature is entitledtoitsjudgment.”300 U.S.at399. Orconsiderprostitution.The majorityinLawrence v.Texaswascarefultonotethatthefacts ofthatcase didnotinvolveprostitution.539 U.S.558,578(2003). LowercourtshavelikewisereadLawrenceasnotrequiring anything beyond rational basis scrutinyof prostitutionbans.See,e.g.,People v.Williams,811 N.E.2d1197,1199 (Ill.Ct.App.2004). Whateverthescopeofasubstantivedueprocess righttosexualautonomy(oraprivacyright,ifthatis howitistobecategorized), thatrightdoesnotextend tocommercialsex.Thereisagooddealofreasonable debate about whether,on balance, prostitution bans are effective at serving various interests (such as preventingspreadofserioussexuallytransmitted diseases or preventing coercion of prostitutes), or actually endupunderminingthoseinterests.Butaswith most
(callingstrictscrutinyduringthepre-Smithera“strictintheory butfeebleinfact”);Ira C.Lupu,The Trouble with Accommodation,60Geo. Wash.L.Rev.743,756(1992)(“strictintheory,but ever-so-gentleinfact”); Michael W. McConnell,FreeExerciseRevisionismandtheSmithDecision,57 U.Chi.L.Rev.1109,1110, 1127(1990)(sayingthat“[t]he‘compellinginterest’standardisa misnomer”inthepre-Smithcasesbecausetheactualtestthis Courthadappliedwas morelenient).

10
otherregulationsofcommercialactivity,thesequestionsareleftforlegislatures.
Say,though,thatsomeonesincerelyclaimsareligious calling to be a prostitute, perhaps to raise funds for a religious groupto whichthe person belongs. (Thereisalonghistoryof temple prostitution,and somepeople mightraisesuchclaims,sincerelyorat leastplausiblysincerely.See,e.g.,AnkurShingal,The Devadasi System: Temple ProstitutioninIndia, 22 UCLA Women’sL.J.107(2015);Leah Hyslop,India’s ‘Prostitutesof God’, Telegraph(UK),Sept.20,2010; Jennifer Hunter,SacredProstitution, Contemporary, in2Melissa Hope Ditmore, EncyclopediaofProstitutionandSex Work419(2006).)Thenthecourtswould havetostepinandreconsiderthelegislativejudgment about prostitution under strict scrutiny.
Suchclaims haveindeedbeenbrought. See,e.g., Statev.Elise,No.1CA-CR16-0373,2018 WL5729354 (Ariz.Ct.App. Nov.1);Tracyv.Hahn,No.90-56223, 1991 WL148926(9thCir. Aug.6). Sometimesthe courts maybeabletoconcludethattheclaimsareinsincere.SeeElise,2018 WL5729354,*3;Tracy,1991 WL 148926,*2.Butinothercases,adefendantcould besincere,oratleasttherecouldbelittleevidencerebuttingthedefendant’sclaimsofsincerity.Thecourts wouldthenhavetoevaluateprostitutionstatutesunder strict scrutiny after all.
And,finally,considerantidiscriminationstatutes such as the one here. During the heyday of substantive dueprocessintheearly1900s,thisCourtrecognizeda freedomofcommercialassociationthatcouldtrump antidiscriminationstatutes—forinstance,onesthat barred discriminating against union members. See

11 Adair v.United States,208 U.S.161,174-76(1908) (strikingdownalawthatbannedemployersfromdemandingthattheiremployeesnotjoinaunion,onthe groundsthatthegovernment may not“compelany person, in the course of his business and against his will, to accept orretainthe personalservices of another”);Coppagev.Kansas,236 U.S.1,12-13(1915). Butsincethen,thisCourthasconcludedthatthereis nosuchbroadfreedomofassociation,andonlynarrowerrightslimitedtoexpressiveassociationandto intimateassociation.See,e.g.,Robertsv.UnitedStates Jaycees,468 U.S.609,617-20,622-23(1984).
Yet ifSmithwerereversed,courtswould haveto considerconstitutionalclaimsofexemptionsfromantidiscriminationlawinemployment,housing,public accommodations,and more.Thoseclaimswouldnotbe limitedto narrowclaimsabouttherighttochoose clergy, the right to choose parade participants, or the rightnottocreateexpressive works—they wouldapply wheneversomeonehasareligiousreasonfordiscriminating.
Consider,forexample,thecasesthathavearisen involvingdiscriminationagainstunmarriedcouplesin housing.5 Sayalandladybelievesitwouldbesinfulfor hertorentanapartmenttoanunmarriedcouple.If sheraisesasubstantivedueprocesschallengetoalaw banning marital-statusdiscriminationinhousing,she willlose(assumingshefallsoutsidethenarrowzone
5 See,e.g.,Eugene Volokh, A Common-Law Modelfor ReligiousExemptions,46UCLAL.Rev. 1465,1525n.191(1999)(collectingsevensuchappellatecases,fromvariousjurisdictions).

12
ofconstitutionalprotectionprovidedbytherightofintimateassociation6).
True,she mightclaimsheisnotviolatinganyone’s rightsbyherdecision,andlibertarians mayagree.No one, they will argue, has a right to rent another’s propertyovertheowner’sobjections. Butthelegislature hastakenadifferentview—itbelieveseveryonehasa righttobetreatedequally,eveninopportunitiestouse another’s property. And, underthis Court’s modern substantivedueprocessdoctrine,itisnotforcourtsto decide whetherthelegislature’s orthelibertarians’ normativevisioniscorrect.
Yetheretoo,overrulingSmithwouldrequirecourts todecidewhetherthereisacompellinggovernmentinterestinprohibitingdiscrimination—whichistosayto decide whethertoendorsethelegislature’snormative judgmentthatpeoplehavearighttobefreeofsuch discrimination.Thisistheveryquestionthatsubstantivedueprocessjurisprudencesuggestsshouldbeleft tothelegislature. II. Accepting religious exemptions under
RFRAsisconsistent withrejectingthemunder the Free Exercise Clause SmithwasthusrighttoholdthattheFreeExercise Clausedoesnotrequirereligiousexemptionsfromgenerallyapplicablelaws.ButSmith’scriticismsofaconstitutionally-mandated religiousexemptionregimedo
6 Sucharightlikelyappliestochoiceofroommates,Fair HousingCouncil v.Roommate.com,LLC,666F.3d1216,1220-22 (9thCir.2012),orperhapstheoft-discussedowner-occupied“Mrs. Murphy’sboardinghouse,” 114Cong.Rec.2495,3345(1968),but likelynottothetypicalnon-owner-occupiedrental.

13
notextendto RFRAs,because RFRAsinvolveavery differentsortof“balanc[ing]againsttheimportanceof generallaws the significance of religious practice,” Smith,494 U.S.at889,n.5.
When judgesapplythefederalRFRAtoafederal law,orastateRFRAtoastatelaw,theyarenotsaying,“Basedonourownnormativeandpragmaticjudgment, weconcludethat thegovernmentcannotapply thelawhere.”Rather, theyaresaying,“Thelegislature has expressly asked us to carve out religious exemptionswhenwethinkgovernmentinterestsarenot weightyenoughorapplyingthelawisnotreallynecessarytoservethoseinterests—butifthelegislature disagreeswithournormativeandpragmaticjudgment here,itcansimplyexemptthissortofgovernmentactionfromtheRFRA.”
Inthisrespect,thecourts’normativeandpractical judgmentunderRFRAsissimilartothejudgmentthat courtshavelongexercisedindevelopingthecommon law. Variouscommon-lawdecisionsofcourseinvolve normative andpracticaljudgment—e.g., whetherto abrogate the tort of alienation of affections, whether to impose a duty on psychiatrists to report credible threatsbytheirvictimsagainstthirdparties,whether toholdsocialhostsliablewhentheyservetheirguests alcohol and the guests later injure someone, or whether tolimit the employment-at-will doctrine. Suchjudgment(albeitexercisedcautiously,andconstrained by precedent) is a traditional part of the role ofcommonlawcourts.
Whyissuch judgmentproperincommon-lawdevelopment,butresistedforsubstantivedueprocess claims? Preciselybecausecommon-lawdevelopment

14 gives courts only the first say, not the last say. Legislaturescananddorevisecommon-lawruleswhenthey disagree with thecourts’normative and pragmatic judgments.7 Likewise,if,forinstance, Congressdisagrees withthisCourt’sjudgmentaboutthe modest risksposedbyhoascainOCentro,itcouldsimply“explicitlyexclude[]”thehoascabanfromRFRAunder42 U.S.C. § 2000bb-3(b).Legislatures haveindeed exemptedvariouslawsfromRFRAs,suchasdruglaws, Fla.Stat. Ann.§761.05(4);71Pa.Stat.§2406(b)(1), andcivilrightslaws,Ind.Stats.§13-9-0.7;Tex. Civ. Prac. & Remedies Code§§110.011.Theseprovisions were aimed at anticipatorily precluding exemption claims;butastatecouldequallyenactsuchastatute afterareligiousexemptionisgranted,ifthelegislaturewantstopreventsimilargrantsinthefuture.
Thecourts’roleincreatingreligiousexemptions underRFRAsisalsosimilartotheirrolesincreating other exemptions under other statutory grants of power. Thecongressionallyenacted Federal Rulesof Evidence,forinstance,dictatethattestimonialprivileges are to “be governed by the principles of the commonlawasthey maybe interpretedbythecourtsof the United Statesinthelight of reason and experience.”Fed.R.Evid.501.Someenvironmentallawsuse thesamelanguagetoauthorizecourtstodevelopaffirmativedefenses.See,e.g.,42 U.S.C.§§6928(f)(4), 7413(c)(5)(D). The Copyright Actof 1976 authorizes courtstodevelopfair-useprinciplesusingtheirown discretion, though it provides more guidance than do
7See,e.g.,Cal.Civ.Code§43.5(abolishingtortclaimsforalienationofaffectionsandsimilartorts);Cal.Civ.Code§1714(b) (abrogatingsocialhostliability).

15
theRulesofEvidence.17 U.S.C.§107.Thesearelegitimategrantsofdiscretiontocourts,preciselybecausetheyleave legislaturesgenerallyfreetolater substitutetheirowndecisionsabout“reasonandexperience”forjudges’decisions.
And RFRAs can help religious objectors even though grants of exemptions under RFRAscan be overruledbythelegislature.First,RFRAscircumvent legislativeinertia:It maytake many yearsfor objectors(especiallythose whobelongtoasmallreligious group)togetarequestforaspecificreligiousexemption onthelegislative agenda. RFRAslet objectors bring their objections to court in the first instance— and if a judge rules in their favor, legislative inertia willthencutintheobjector’sfavor.
Second,legislaturesthatenact RFRAslimitlocal governments’andexecutiveofficials’abilitytorestrict religiouspractices.Indeed,inthisverycase,thePennsylvaniaRFRAallowedCSStoraiseanobjectiontothe City ofPhiladelphia’sactions,beforeeitherafederal court(as CSSdidhere)orastatecourt.Tobesure, objectors willsometimesloseincourt,astheydidin this case, because the court will conclude that denying theexemptionisjustifiedunderstrictscrutiny.Butat leastthey will have hadtheopportunityto challenge thelocalactioninthefirstinstance.
Third,legislativeoversight may makejudges more willingtograntreligiousexemptions.Acourt maybe reluctanttoacceptacloseconstitutionalclaimpreciselybecauseacceptingit wouldpermanentlybind thelegislature. ButunderaRFRA,ajudge maybe morewillingtodecideclosecasesintheclaimant’sfavor,preciselybecausethedecisionisnotfinal.

16
Thelegislative authorization behind the RFRA modelalso makesexemptionseasiertodefend.Pro-exemptiondecisionsundertheFreeExercise Clause(if Smithwererejected)say,implicitlyorexplicitly, “We refusetoapplyademocraticallyenactedstatute”—but underaRFRA,theycanbewrittenas“Pursuanttothe legislature’scommand, weapplythedemocratically enactedstateRFRAtocarveoutareligiousexemption.”TheRFRA modelthusprovidesapalatableoption tojudges(including elected statejudges) who worrytheirdecisions mightleadtopoliticalbacklash, or who are philosophically uneasy aboutthecountermajoritariannatureofjudicialreview.
RFRAs, then, are sound and valuable protections forreligiousobjectors,inthosejurisdictionswherelegislatureshavechosentoenactthem.Buttheyarelegitimatefortheveryreasonthat overruling Smith wouldnotbe:Theyleavethefinal wordoncontested normativeandpragmaticquestions withthelegislature.**** III. Strictscrutinyisimproperforreligiousac-
commodationclaims,eventhoughitisused astonarrowerrights Ofcourse, courts do applystrictscrutinytoevaluatesomesubstantiveconstitutionalrightsclaims.See, e.g.,Holderv.HumanitarianLawProject,561U.S.2539(2010) (content-basedspeechrestrictions);Marylandv.Craig,497U.S.836,852-54(1990)(restrictions onface-to-faceconfrontation);InreCrisisConnection, Inc.,949 N.E.2d789,802(Ind.2011)(restrictionson compulsoryprocessrights).There,courts mustindeed decide whichinterests arecompellingenough, and

17
whetherarestrictionisreallynecessarytoservethat interest.
Butthesedifferfromclaimsofreligiousexemption intwo majorways.First,theyrequirejudicialsecondguessingofthelegislatureonlyinparticularandrelatively modest domainsofgovernment action.Relativelyfewgovernmentregulations,forinstance,are content-based speech restrictions that are outside the familiar exceptionsto First Amendment protection and thus require strict scrutiny.
Religious exemption claims, on the other hand, could potentially be asserted as to “civic obligations of almosteveryconceivable kind,”Smith,494 U.S.at 888,suchas“compulsory militaryservice,”“thepaymentoftaxes,”“manslaughterandchildneglectlaws,” “compulsory vaccinationlaws,”“druglaws,”traffic laws,”“minimum wagelaws,”“childlaborlaws,”“animalcrueltylaws,”“environmentallaws,”andantidiscriminationlaws,id.at889.Constitutionalizingreligiousexemptionclaims wouldinvolvecourtspotentiallysetting asidelegislativejudgmentsin avast range of areas.
Second,freespeech,therighttocompulsoryprocess, and other such rights are rights to do certain thingseven whenthosethingsareharmfulincertain ways.The Compulsory Process Clause,forinstance, securesanarrowright,butonethatentitlesthebearer toharmothersbyinterferinginaparticularwaywith theirliberty and privacy. Certainly any private attempttodragsomeoneagainsthis willintoaroom, makehimtalk onpainofimprisonment,andrequire himtoturnoverhispropertyforinspectionwouldnormallybeseenasagrossdeprivationoflibertyand

18
propertyrights.Nonetheless,theCompulsoryProcess Clauseauthorizessuchinflictionofharm.
Likewise, free speech includes freedom to say thingsthat mightotherwisebeseenasviolatingpeople’scommon-lawrights—therights nottobesubjectedtooutrageouslyinflictedsevereemotionaldistress,Snyderv.Phelps,562 U.S.443,456(2011);Hustler Magazine, Inc.v. Falwell, 485 U.S. 46, 50-57 (1988),tointerferencewithbusinessrelations,NAACP v. Claiborne Hardware Co.,458 U.S. 886, 912-15 (1982),toanticompetitiveconspiracies,Eastern R.R. PresidentsConferencev.Noerr MotorFreight,Inc.,365 U.S.127,136-38(1961),and more.Italsoincludes (outsidethe narrowincitementexception,Brandenburgv.Ohio,395 U.S.444,447(1969))thefreedomto saythingsthatadvocatecrime,andthus makecrime morelikely.
Freespeechlikewiseinvolvestherighttodiscriminate based on sexual orientation, sex, race, and the like,wherethediscriminationispartofone’sfreedom to associate for expressive purposes, or perhaps one’s freedomnottobecompelledtocreateexpressive materials.See,e.g., Hurleyv.Irish-AmericanGay,Lesbian &Bisexual GroupofBoston,Inc.,515 U.S.557(1995); BoyScoutsof America v.Dale,530 U.S.640(2000); Masterpiece Cakeshop, Ltd. v. Colorado Civ. Rts. Comm’n,138S.Ct.1719,1741-46(2018)(Thomas,J., concurringinpartandconcurringinthejudgment); Telescope Media Group v.Lucero,936 F.3d740,75456(8thCir.2019).Thisissoevenwhenthelawwould otherwisetreatsuchdiscriminationasalegallyactionabledignitaryharm.

19
And theFree Exercise Clauselikewiseincludesa righttodothingseven whentheyareharmfultoothersincertainspecificandnarrowzones,suchas“areligiousgroup’srighttoshapeitsownfaithand mission throughitsappointments”of ministersandotherswho wouldspreadtheirfaith.Hosanna-TaborEvangelical Lutheran Churchand School v.EEOC,565 U.S.171, 188(2012).Thelawgenerallyrecognizesdiscriminatoryrefusalstohireaslegallycognizableharms,becausesuchrefusalsinterfere with people’s abilityto earnalivingintheirpreferredprofession.Butchurchesareentitledtoinflictthatharmonprospectiveclergyandcertainotheremployees.
Likewise,thepresenceoftheFreeExerciseClause intheFirstAmendmentalsoreaffirmsthatthe“freedoms of speech and assembly” extend regardless of “whetherthe beliefs soughtto be advanced***pertaintopolitical,economic,religiousorcultural matters.”NAACP v.Alabamaexrel.Patterson,357 U.S. 449, 460-61 (1958). All large gatherings, including religiousones,forinstance,riskspreadingcommunicablediseases(suchas,inordinarytimes,theflu).But somesuchdangertopublichealthordinarilyhastobe acceptedundertheAssemblyClause,eveniftherule may sometimesbedifferentforextraordinaryrisks.
Insuchsituations,thepremiseoftherightisthat peopleareindeedentitledtoinflictcertainharmson othersoronsociety,presumablybecausetheexercise of those rights is seen as so socially valuable, on balance,thatthoseharms mustbeendured. Andthere, courtshavetobeabletodeterminewhenaharmisso grave or so otherwise unavoidablethat certain restrictionsontheright mustbeallowed—hencethe strict scrutiny test.

20
Butthe Free Exercise Clausecannot besensibly seenasgenerallyauthorizingpeopletoinflictharms onotherssimplybecausetheyfeelareligiousobligation to do so. If Larry Flynt felt a religious obligation to protestwith a bullhorn outside Jerry Falwell’s houseinthe middle ofthe night,the Free Exercise ClauseshouldnothavegivenFlyntareligiousexemptionfromtheemotionaldistresstort(orfromanoise ordinance).
Ifpeoplefeelareligiousobligationtointerferewith someone’sbusinessrelationsby,say,blockadingthe entrancetothe business,the Free Exercise Clause shouldnotgivethemarighttodoso.Cf.,e.g.,American Life League,Inc.v.Reno,47 F.3d642(4th Cir. 1995)(rejectingaclaimedreligiousfreedomrightto blocktheentrancetoanother’sproperty).Ifpeoplefeel a religious obligationtointerfere withthe draft by blockingadraftoffice,theFreeExerciseClauseshould notgivethemarighttodoso,eventhoughtheFree Speech Clause protects people’s ability tointerfere withthedraftviaanti-draftadvocacy(atleastoutside the Brandenburg exception).
Likewise,thoughtheCatholicChurchhastheright toordainandthenemployonly malepriests,itdoes notfollowthatthesameright wouldapplytoevery employerwhohasasincerelyheldreligiousbeliefthat (say)heshouldnotemploywomen withyoungchildren.Thoughthe BoyScoutshavetherighttoreject gayassistantscoutmasters,itdoesnotfollowthatthe samerightwouldapplytoarestaurantownerwhohas a sincerely held religiousbeliefthat hisrestaurant shouldnotservelunchtosame-sexcouples.

21
Thisissobecause,importantasone’srelationship withone’sGod maybetothebeliever,itcannotbyitselfgivethebelievertheconstitutionalrighttoharm athirdparty,evenslightly.Fromthelegalsystem’s perspective, the believer’s God isjustthe believer’s own,notthethirdparty’sandnotthelegalsystem’s. The Constitution does not generally give those acting in Hisnamesovereigntyoverthirdparties’legallyrecognizedrightsandinterests,oroverthelegallyrecognized interests of the public generally (as in the draft office hypothetical).
Constitutional protectionforinflicting harm on otherssimplybecauseofthenatureofone’s motivation (asopposedtoother, morefocusedreasons)isvirtually unprecedented. The only constitutional principle that evenapproachessucharegimeistheexpressiveconductdoctrine.See Clark v.Communityfor Creative Non-Violence, 468 U.S. 288,293-94(1984);United Statesv.O’Brien,391 U.S.367,376-77(1968).
Buteven thisdoctrineisverynarrow.Itapplies onlyto“inherentlyexpressive”conduct,Rumsfeld v. FAIR,547 U.S.47,65-66(2006),andcontent-neutral restrictions on expressive conduct are evaluated only undera fairly weakformofintermediatescrutiny, whichhasprovenquite deferentialtogovernmentinterests.Ifexpressiveconductisconstitutionally allowedtoinflictharmonothers,theseharmscanat most be modestindeed;the prevention of even aestheticharms,suchasthe“visualblight”createdby billboards,hasoftenbeenfoundsufficienttojustifyrestrictions.See,e.g., MembersoftheCityCouncilv.TaxpayersforVincent,466 U.S.789,804-05(1984).

22
Nowofcoursethetypicalargumentsinfavorofreligiousaccommodationsassertonlyarighttodothings thatdonotharmothers.Jefferson’sdefenseofreligiousfreedom,forinstance, wasjustifiedbytheargumentthat someone’s“say[ing]therearetwentygods, or no God***neitherpicks mypocketnorbreaks my leg.”8Madison wrotethatreligionshouldbe“immun[e] ***fromciviljurisdiction,ineverycasewhereitdoes nottrespass on privaterights orthe public peace.”9 Similarly, Prof.Michael McConnell hasarguedthat weshouldbe “freetopracticeourreligionssolongas wedonotinjureothers.”10
Butofcoursewhatconstitutesharmtoothersisfamously disputed. What kinds of emotional distress shouldqualify? Whenisdiscriminationinpublicaccommodationsacognizableharm?ReturningtotheexamplesfromPartI,ishiringsomeoneforasub-minimumwageaharmtothatperson,despitethatperson’s ostensibleconsent? Whataboutassistingthesuicideof someone whovery much wantssuchassistance—or perhapssomeone whoisbeingsubtlypressuredinto seeking such assistance?
Ifthestrictscrutinytestistobeusedtodetermine what “really”harmsothersand what“doesn’treally” harmthem,thenitwillputcourtsintheveryposition describedin Part I: They will have to constantly
8ThomasJefferson,NotesontheStateofVirginia 159(WilliamPedened.,1955).
9 James Madison, Letterto Edward Livingston(July 10, 1822),in9The WritingsofJames Madison100(Gaillard Hunt ed., 1901).
10Michael W. McConnell,FreeExerciseRevisionismandthe SmithDecision,57U.Chi.L.Rev.1109,1128(1990).

23
decide,astolaws“ofalmosteveryconceivablekind,” Smith,494U.S.at888, whatshouldcountasharm, andwhatinfactwillcausethatharm.Andthatindeed wouldbe“horribletocontemplate,”id.at889n.5. IV. Smith shouldbeappliedeven whenalaw
containssecularexemptions Somemaintain thatSmith shouldnotapply,and thusthatreligiousexemptionsshould berequired, whenlawscontainexemptionsfornon-religiously motivatedconduct.TheFree Exercise Clause,theargument goesshouldatleastprovideasortof“mostfavorednation”11 statusforreligiouspractices—“when thegovernment makesavaluejudgmentinfavorof secular motivations,butnotreligious motivations,the government’sactions mustsurviveheightenedscrutiny.”FraternalOrderofPolicev.Cityof Newark,170 F.3d359,366(3dCir.1999). Petitionersinthiscasemake asimilarargument— that,onthetheorythatPhiladelphiapermittedvarious categorical secular exemptions but not religious ones,thelawisneitherneutralnorgenerallyapplicableandthusSmithshouldnotcontrol.Pet.Br.27-30. Instead,theysay,scrutinyshouldbeappliedtodeterminewhetherareligiousexemptioniswarranted,addingthatthisCourt’sdecisioninLukumisupportsthis conclusion. Id. (This goes beyond the separate argument,Pet.Br.26,thatlawsthatprovidefora“system ofindividual exemptions” applied by anexecutive agencyshouldgenerallyhaveto“extendthatsystem
11See,e.g.,DouglasLaycock, The RemnantsofFreeExercise, 1990 Sup. Ct. Rev. 1, 49-50.

24
tocasesof‘religioushardship.’”Smith,494 U.S.at 884.)
But Lukumiacknowledgedthat“[a]lllawsareselectivetosomeextent,”andcondemnedonlylegislative judgments“thatthegovernmentalinterestsitseeksto advance are worthy of being pursued only against conduct with a religious motivation.” Church of the LukumiBabaluAye,Inc.v.Cityof Hialeah,508 U.S. 520,542(1993)(emphasisadded).“Theprinciplethat government,inpursuitoflegitimateinterests,cannot inaselective mannerimposeburdensonlyonconduct motivatedbyreligiousbeliefisessentialtotheprotection ofthe rights guaranteed bythe Free Exercise Clause.”Id.at543(emphasisadded).“[I]nequalityresultswhenalegislaturedecidesthatthegovernmental interestsitseekstoadvanceare worthyofbeingpursuedonlyagainstconductwithareligious motivation.” Id.at542-43(emphasisadded);seealsoid.at524,535, 543, 545, 546, 547 (likewise stressing that the ordinancesinLukumiwereapplied“only”toreligiousconduct,or“almost”“only”tosuchconduct,ina waythat wasevidenceofdeliberatetargetingofreligion).
Andthereisagoodreason whythisCourtdidnot concludeinLukumithatlawswithsecularexemptions wereoutsidethescopeofSmith:mostlawshave many secularexemptions,becausetheyareanimatedbya mixof secularinterests.
Considersomethingassimpleastrespasslaw.It aimstoprotectpeople’srighttoexclusiveuseoftheir property—andyetithasexceptionsthatprotectother interests:adversepossession,necessity,lawenforcement,and soon.Thus,A maysometimestrespasson B’slandtorecaptureA’sstrayinganimals who might

25
otherwisebeinjured,12orinterferewithB’schattelsto abateanuisance.13Butitdoesnotfollowthatthereis thereforeaconstitutionalimperativetoprovideasimilar exception for religious reasons for going on another’s property (e.g., if one thinks there is a sacred sitethere)ordamaginganother’schattels(e.g.,ifone believesone mustremoveablasphemousdisplay).
Thegovernment maylegitimatelyconcludethat thelaw mustbalancesomesecularinterestsagainst other secular interests (whether those interests are compellingor merelylegitimate), withoutcreatingan exceptionforpeoplebasedsimplyontheirreligiousbeliefs.Thatyourpropertyrights mustyieldinnarrow contexts to recognized secular concerns—concerns thatsocietyhasdecidedmeritexceptions fromtrespasslaw—does not meanthatyourpropertyrights mustyieldtoothers’viewsoftheirownreligiousobligations.
Likewise,considerthedutytotestifywhensubpoenaed,andthe manytestimonialprivilegesthatconstituteexceptionstotheduty.See,e.g., Cal. Evid. Code §§ 950-1063(West 1995).These exceptions reflect valuejudgmentsinfavorofprotectingcertainsecular interests, such as the interests in protecting spousal confidences,tradesecrets,doctor-patientcommunications,andthelike(as wellasthenarrowreligiousinterestinprotectingclergy-penitentcommunications). These judgmentsstemfromtheirowncomplicated mixes of normative decisions, practicalestimations,
12See,e.g.,Restatement(Second)ofTorts§197(1)(a). 13See,e.g.,id.§264(1).

26 and tradition. And the presence of those secular value judgmentsshouldnotconstitutionallyobligateastate toprovideasimilarreligiousprivilegetoanyone who, for instance, feels a religious obligation not to testify againstaparentorchild14 oragainstacoreligionist.15
Otherlawslikewisehavevastarraysofexceptions. Breachofcontractlawhasexceptionsgalore.TheCopyrightActcontainsoneoperativesectionfollowedby over fifteensectionsof exceptions. See 17 U.S.C.§§ 106,107-122;cf.UrantiaFound. v.Maaherra,895F. Supp.1329(D. Ariz.1995) (rejectingaclaimedreligiousfreedomrighttoinfringeanother’scopyright); Bridge Publications,Inc. v. Vien, 827 F. Supp. 629 (S.D.Cal.1993)(same).
14SomereligiousJewstakethisview.See,e.g.,Inre Grand Jury EmpanelingofSpecial GrandJury,171F.3d826(3d Cir. 1999);Inre Doe,842F.2d244,245-48(10thCir.1988);Portv. Heard,764F.2d423,431-33(5thCir.1985);Inre Greenberg,11 Fed.R.Evid.Serv.579(D.Conn.1982);EricaSmith-Klocek, A HalachicPerspectiveontheParent-ChildPrivilege,39 Cath.L. 105(1999).Suchclaimshavegenerallybeenrejectedbyjudges, exceptinInre GreenbergandbytheInre GrandJuryEmpanelingdissent.
15Some MuslimsandJewstakethisview.UnitedStates v. Thomas,No. CRIM. A.92-119-01,1998 WL633981,*1,*3n.5 (Aug.24,1998);Statev.Bing,253S.E.2d101,102(S.C.1979); UnitedStates v.Huss,482F.2d38,51(2dCir.1973);Smilow v. UnitedStates,465F.2d802,804(2dCir.1972),vacatedonother grounds, 409 U.S. 944(1972).Some people haveraisedstill broaderreligiousobjectionstotestifying wheretheirtestimony couldbeusedin waysthatviolatetheirreligiousbeliefs,suchas theirreligiousoppositiontocapitalpunishmentortheirbroader dutytoavoidharmtoothers.See People v.Ray,417 P.3d939 (Colo.Ct.App.2018);Peoplev.Woodruff,26A.D.2d236,237-38 (1966).

27
Antidiscriminationstatutesroutinelyhaveexceptionsaimedatprotecting manyimportantsecularinterests,suchasexceptionsforbusinesses withfewer thansomethresholdnumberofemployees.See,e.g.,42 U.S.C.§§2000e(b),2000e-1(b)(under15); Wash.Stat. § 49.60.040(11) (under 8).Yet that thelegislature viewssmallemployers’interestinfreedomofassociation(orfreedomfrompotentiallyburdensomeemploymentregulation)asjustifyinglimitingantidiscriminationlawdoesnot meanthatitmust similarlyaccommodate largeemployers’interestsincomplyingwith their religious beliefs.
And if the presence of the exceptions were seen as making thestatutenolonger“generallyapplicable”for Employment Divisionv.Smithpurposes,that would require morethanjustthe application of strict scrutinytoreligiousexemptionrequests:It wouldalso meanthatthelawswouldoftenbeseenasfailingstrict scrutiny, precisely because oftheir underinclusiveness.
Under RLUIPAstrictscrutiny,forinstance,this Courtheldthatastateprisonsystemmustallowshort religious beards in part because of the presence of an exceptionforshort medicalbeards:theexception,this Courtstressed, made the policy“substantially underinclusive.”Holt v.Hobbs,574 U.S.352,367(2015).In Lukumi,thisCourtsimilarlytooktheviewthat,once strict scrutinyis appliedin a Free Exercise Clause case,alaw’s“underinclusive[ness]”showsthatitisnot “narrow[ly]tailor[ed].”508 U.S.at546.Andoneofthe appellatecasesthatimplementsthepetitioner’stheory—Blackhawkv.Pennsylvania,381F.3d202,211, 214(3dCir.2004)—usesthepresenceofsecularexceptionsfirsttoshowthatafaciallyreligion-neutrallaw

28
hadtobesubjectedtostrictscrutiny,andthentoshow thatitfailed strictscrutiny becauseit was“not narrowlytailored.”
Such an approach may be sensible under an RLUIPAor RFRAregime,sincetherethelegislature could overrule decisions that it thought relied unduly onthe presenceofsecular exceptions. But underthe approach suggested by petitioners, granting religious exceptions based on the existence of secular exceptions wouldbeaconstitutionalrequirement. Faithfullyapplied,sucharegimemightwellrequirebroadreligious exemptionsfromthedutytotestify,fromcopyright law,fromantidiscriminationlaw,fromtrespasslaw, and more.SeeDouglasLaycock,TheBroaderImplicationsof MasterpieceCakeshop,2019BYUL.Rev.167, 173(“Ifalaw withevenafewsecularexceptionsisn’t neutralandgenerallyapplicable,thennot manylaws are.”)(emphasisadded).
And,justlike rejectingSmith wouldrevivethe mainproblems oftheearly1900ssubstantivedueprocesscases,sowouldanapproachthatrequirescomparingproposedreligiousexemptions withexistingsecularexceptions.Intheearly1900s,theCourtoftenconcluded that the Equal Protection Clause required differentpracticestobetreatedthesame way. Onecase, forinstance,struckdownstatutesthatawardedattorneyfeestoshippersinsuccessfullawsuitsagainstrailroads,butdidnotlikewisegivefeestorailroads when they prevailed.16 Another struck down a tax that
16 SeeAtchison,Topeka &SantaFeRy. Co. v.Vosburg,238 U.S.56(1915);seealsoGulf,Colo. &SantaFeRy.Co. v.Ellis, 165 U.S. 150(1897) (striking down a statute that allowed

29
treatedshort mortgagesdifferentlyfromlong mortgages.17Anotherstruckdownastatutethatbarredinjunctionsincertainlabordisputesbutallowedinjunctionsinothercases.18
Theproblem,astheCourtultimatelyrecognizedin rejectingtheseholdings,isthat whethertwokindsof conductshouldbetreatedalikecallsforthesamesort ofnormative andpracticaljudgmentaboutgovernmentinterests(and rival privateinterests) thatis calledfor bythe decision about whethercertainconductshouldberestricted.19Differentkindsofbehavior differently affect the participants and third parties. To the 1915 Court, a prevailing shipper and a prevailing railroad mayhaveseemedidenticallysituatedforpurposesofanattorneyfeeaward,butthelegislaturehad cometoadifferentconclusion. And,regrettably,the courtshavenoprincipledwayofdeterminingwhenthe differences are great enough to justify different treatment.
Whenthelawclassifiespeople,institutions,orbehavior based on religious denomination or even
attorney fees against railroad company defendants but not against other defendants).
17 See Louisville Gas & Elec. Co. v.Coleman, 277 U.S. 32 (1928).
18SeeTruax v.Corrigan,257 U.S.312,334,337(1921).But seeid. at 352 (Pitney, J., dissenting)(“Doubtlessthelegislature***concludedthatinlaborcontroversiesthere werereasonsaffectingthepublicinterestforpreventingresorttotheprocess of injunction and leaving the parties to the ordinary legal remedies***.”).
19SeeWilliamson v.Lee Opticalof Okla.,Inc.,348 U.S.483 (1955);RailwayExpressAgencyInc.v.N.Y.,336 U.S.106(1949).

30
religiosity moregenerally,strictscrutiny makessense. See,e.g.,Lukumi,508U.S.at 532;Larsonv.Valente, 456 U.S.228,246(1982);TrinityLutheranChurch of Columbia,Inc.v.Comer,137S.Ct.2012,2024(2017). Butwhenthelawrestrictsa widerangeofbehavior, entirelyapartfromitsreligiosity,thereisnoprincipledwaytoadministeraconstitutionalexemptionsystem,even whenthelawalsoexemptssomebehavior (again,forreasonsentirelyapartfromreligion).
Conclusion “The world has never had a good definitionofthe wordliberty,”Lincolnsaidin1864: Wealldeclareforliberty;butinusingthesame wordwedonot meanthesamething. Withsome the wordliberty may meanforeach mantodo ashepleases withhimself,andtheproductof hislabor;whilewithothersthesameword may meanforsome mentodoastheyplease with other men,andtheproductofother men’slabor. Here aretwo, notonly different, butincompat[i]blethings,calledbythesamename—liberty.20 This,inaparagraph,isthetragedyfacinglibertarians,whetherthosecommittedtolibertybroadlyorto religiouslibertyspecifically. Mostpeoplebelieveinliberty,anditistemptingforeachtoseetheConstitution as a broad charter of liberty that prohibits tyrannical legislation.Buteachofusbelievesinaliberty—andits flip side, the body of private and societal rights and
20AbrahamLincoln,Complete Works513(JohnG. Nicolay & John Hayeds.,1907).

31
interests that none of us is properly at liberty to infringe—that maydifferfromthelibertyenvisionedby our neighbors.
Fewoftoday’sdebateshavethenormativeorpoliticalsalienceoftheslaverycontroversy,but mostdoinvolvesomeincompatibility,similarinkindifnotquite indegree,betweencompetingconceptionsofliberty: Consider,forinstance,thelibertytouseone’s rental property as one sees fit versus the liberty to live togetherasanunmarriedcouplewithoutdiscrimination bythirdparties,“twonotonlydifferentbutincompatiblethings,calledbythesamename—liberty.”
The lesson of the early 1900s substantive due processexperienceisthat—outsidecertain narrowareas—thefinalcallsonwhatconstitutes“liberty”and onwhenexerciseoflibertyundulyharmsothersmust therefore be madethroughthe political process. Libertywritlarge maynotbeenforcedbyjudgesasa matterofconstitutionalcommand.
The Free Exercise Clause should therefore not protectclaimsoflibertyofaction,groundedsolelyinthe religious motivationforone’sactions,againsttheconsideredjudgment of the democratic process. This CourtgotitrightinSmith,andshouldusethiscaseas anoccasiontoreaffirmthatdecision.

32 Respectfully submitted, EUGENE VOLOKH Counsel of Record FIRSTAMENDMENT CLINIC UCLASCHOOLOFLAW 405 Hilgard Ave. Los Angeles, CA 90095 (310) 206-3926 volokh@law.ucla.edu
CounselforAmicusCuriae June 2,2020

 
 No. 19-123
In the Supreme Court of the United States
SHARONELL FULTON, ET AL., PETITIONERS v.
CITY OF PHILADELPHIA, ET AL.
ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
BRIEF FOR THE UNITED STATES AS AMICUS CURIAE SUPPORTING PETITIONERS
NOEL J. FRANCISCO Solicitor General Counsel of Record
JOSEPH H. HUNT ERIC S. DREIBAND
Assistant Attorneys General JEFFREY B. WALL
Deputy Solicitor General HASHIM M. MOOPPAN ALEXANDER V. MAUGERI
Deputy Assistant Attorneys General
VIVEK SURI BENJAMIN W. SNYDER
Assistants to the Solicitor General
ELLIOTT M. DAVIS Special Counsel
MICHAEL S. RAAB LOWELL V. STURGILL JR. ERIC W. TREENE
Attorneys
Department of Justice Washington, D.C. 20530-0001 SupremeCtBriefs@usdoj.gov (202) 514-2217

QUESTION PRESENTED
Whether the City of Philadelphia’s termination of a contract that allowed Catholic Social Services to help place children in the City with foster parents, on the basis of Catholic Social Services’ unwillingness to endorse same-sex couples as foster parents, violated the Free Exercise Clause of the First Amendment.
(I)

TABLE OF CONTENTS

Page

Interest of the United States....................................................... 1 Statement ...................................................................................... 1
A. Factual background......................................................... 1 B. Proceedings below ........................................................... 7 Summary of argument ................................................................. 9 Argument..................................................................................... 10 A. Laws that lack neutrality or general applicability
are subject to strict scrutiny......................................... 12 1. A law that regulates religious conduct but
authorizes individualized exemptions or exempts comparable secular conduct lacks neutrality and general applicability ...................... 14 2. A law also lacks neutrality and general applicability if the context of its adoption or enforcement indicates hostility to religion ........... 18 B. Philadelphia’s policy is not neutral and generally applicable, but instead unconstitutionally discriminates against religion ...................................... 20 1. The City’s refusal to extend its system of exemptions to Catholic Social Services discriminates against religion and violates the Free Exercise Clause ............................................. 21 2. The context of the City’s actions reveals impermissible hostility toward religion ................ 26 Conclusion ................................................................................... 35

TABLE OF AUTHORITIES

Cases:
Bowen v. Roy, 476 U.S. 693 (1986)................................. 15, 16 Brown v. Entertainment Merchants Ass’n,
564 U.S. 786 (2011).............................................................. 18 Bush v. Vera, 517 U.S. 952 (1996) ........................................ 30

(III)

IV

Cases—Continued:

Page

Carey v. Brown, 447 U.S. 455 (1980) ................................... 18 Christian Legal Soc’y v. Martinez, 561 U.S. 661
(2010) .................................................................................... 28 Church of the Lukumi Babalu Aye, Inc. v. City of
Hialeah, 508 U.S. 520 (1993) .................................... passim City of Boerne v. Flores, 521 U.S. 507 (1997) ..................... 11 Employment Div. v. Smith, 494 U.S. 872 (1990)....... passim Epperson v. Arkansas, 393 U.S. 97 (1968).......................... 34 Florida Star v. B. J. F., 491 U.S. 524 (1989) ....................... 26 Forsyth County v. Nationalist Movement,
505 U.S. 123 (1992).............................................................. 16 Fraternal Order of Police v. City of Newark,
170 F.3d 359 (3d Cir.), cert. denied, 528 U.S. 817 (1999)........................................................ 16, 17 J. E. B. v. Alabama ex rel. T. B., 511 U.S. 127 (1994)........ 30 Kennedy v. Bremerton Sch. Dist., 139 S. Ct. 634 (2019) .................................................................................... 11 Larson v. Valente, 456 U.S. 228 (1982)................................ 15 Masterpiece Cakeshop, Ltd. v. Colorado Civil Rights Comm’n, 138 S. Ct. 1719 (2018)................................ passim Railway Express Agency, Inc. v. New York, 336 U.S. 106 (1949)........................................................ 14, 15 Saia v. New York, 334 U.S. 558 (1948) ................................ 16 Sherbert v. Verner, 374 U.S. 398 (1963)............................... 15 Stormans, Inc. v. Wiesman, 136 S. Ct. 2433 (2016) ........... 17 Trinity Lutheran Church v. Comer, 137 S. Ct. 2012 (2017) ................................................... 20, 27 Village of Arlington Heights v. Metropolitan Hous. Dev. Corp., 429 U.S. 252 (1977) ......................................... 19 Ward v. Polite, 667 F.3d 727 (6th Cir. 2012)....................... 15

V

Constitution, statutes, and regulation:

Page

U.S. Const. Amend. I: Free Exercise Clause............................................. passim Free Speech Clause ........................................................ 16
Religious Freedom Restoration Act of 1993, 42 U.S.C. 2000bb et seq. ..................................................... 10
23 Pa. Cons. Stat. (2020): § 6344(d)(2)......................................................................... 2 § 6344(d)(2)(ii)-(iv) ............................................................. 2
Phila. Code (2020): Fair Practices Ordinance, ch. 9-1100 .............................. 4 § 9-1102(1)(e) ........................................................ 23, 24 § 9-1106(1) .................................................................. 23
55 Pa. Code § 3700.64 (2020)................................................... 2

In the Supreme Court of the United States
No. 19-123 SHARONELL FULTON, ET AL., PETITIONERS
v. CITY OF PHILADELPHIA, ET AL.
ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
BRIEF FOR THE UNITED STATES AS AMICUS CURIAE SUPPORTING PETITIONERS
INTEREST OF THE UNITED STATES
This case concerns the application of the Free Exercise Clause of the First Amendment to the City of Philadelphia’s termination of a contract allowing Catholic Social Services to help place children in the City with foster parents, on the basis of Catholic Social Services’ unwillingness to endorse same-sex couples as foster parents. The United States has a substantial interest in the preservation of the free exercise of religion. It also has a substantial interest in the enforcement of rules prohibiting discrimination by government contractors.
STATEMENT A. Factual Background
1. The City of Philadelphia has protective custody of over 5000 children who have been abused or neglected.
(1)

2
Pet. App. 194a. Each year, the City enters into contracts with private foster-care agencies to help place those children with foster parents. Id. at 13a. At the start of this litigation, the City had contracts with 30 such agencies, many of which specialize in helping particular groups—such as Latino children, Native American children, and children of teenage mothers. Id. at 13a, 263a-264a. A guide published by the City explains that “[e]ach agency has slightly different requirements, specialties, and training programs” and encourages potential parents to “[b]rowse the list of foster agencies to find the best fit.” Id. at 197a. Foster agencies that “[can]not accommodate” particular parents or families routinely refer those applicants to other agencies. Id. at 219a; see id. at 219a-220a.
Once a potential foster family and agency decide to work with each other, the agency helps the family go through a process of certification that takes three to six months to complete. Pet. App. 197a. As part of that process, the applicants receive training and undergo background checks. Id. at 197a-198a. The agency also reviews the suitability of the applicants’ home and family. Id. at 198a, 257a. In doing so, the agency considers (among other things) the applicants’ “[m]ental and emotional well-being,” “[s]upportive community ties with family, friends and neighbors,” and “[e]xisting family relationships, attitudes and expectations regarding the applicant’s own children and parent/child relationships.” 23 Pa. Cons. Stat. § 6344(d)(2) (ii)-(iv) (2020); see 55 Pa. Code § 3700.64 (2020). At the end of the process, the agency decides whether to “approv[e]” the applicants as fit foster parents. 23 Pa. Cons. Stat. § 6344(d)(2) (2020); see Pet. App. 35a. If the agency so

3
certifies, the City decides whether to place foster children with the foster parents. Pet. App. 13a. The City pays the agency a sum of money for each child the agency helps place, in order to help cover a portion of the agency’s expenses. Ibid.
2. Petitioner Catholic Social Services, a religious non-profit organization affiliated with the Archdiocese of Philadelphia, operates a foster agency in the City of Philadelphia. Pet. App. 12a. The organization “sees caring for vulnerable children as a core value of the Christian faith and therefore views its foster care work as part of its religious mission and ministry.” Ibid. The organization was founded as the Catholic Children’s Bureau in 1917, and for over 50 years it has entered into contracts with the City to provide foster services as part of the City’s foster-care system. Id. at 137a, 254a.
In accordance with its religious beliefs, Catholic Social Services is willing to provide foster certifications for households headed by married couples or single people, but not households headed by unmarried couples. Pet. App. 14a. Because it adheres to the belief that marriage is the union of a man and a woman, it regards all same-sex couples as unmarried. Ibid. The upshot of those beliefs is that the organization will provide foster certifications for married opposite-sex couples and single, unmarried individuals (including gay and lesbian individuals) but not for same-sex couples or unmarried opposite-sex couples. Ibid.; see J.A. 188. The organization has no objection to referring same-sex couples and unmarried opposite-sex couples to other foster agencies in the City, however, and has explained that “[i]f Catholic Social Services is unable to perform in-depth home assessments and make recommendations to the state for any reason, including consistency with its religious

4
mission, then Catholic Social Services will refer the potential foster parent to one of 28 nearby agencies who can better serve their needs.” Pet. App. 158a; see id. at 14a.
3. As far as the government is aware, there is no evidence in the record that any same-sex couple has ever approached Catholic Social Services for its help with foster certification, and no such couple has ever filed a complaint against the agency for refusing service. Pet. App. 14a, 159a. In March 2018, however, a reporter from the Philadelphia Inquirer published an article stating that Catholic Social Services and Bethany Christian Services, another religious foster agency in the City, were unwilling on religious grounds to help same-sex couples become foster parents. Id. at 14a.
Three days after the publication of the article, the city council adopted a resolution addressing discrimination by foster agencies. Pet. App. 146a-148a. The resolution explained that Section 14.1 of the City’s Professional Services Contract prohibited contractors from discriminating on the basis of sexual orientation and that the City’s Fair Practices Ordinance, Phila. Code ch. 9-1100 (2020), prohibited discrimination on the basis of sexual orientation in places of public accommodation. Pet. App. 146a-147a. The resolution asserted that “[a]t least two” foster agencies “have policies that prohibit the placement of children with LGBTQ people based on religious principles, although the City of Philadelphia has laws in place to protect its people from discrimination that occurs under the guise of religious freedom.” Id. at 147a. The resolution authorized an investigation into the City’s “policies on contracting with social services agencies that * * * discriminate against prospective LGBTQ foster parents.” Ibid. The resolution also

5
recommended that the City Department of Human Services conduct “a thorough review of its contracts with all of its * * * foster care agencies to ensure that providers are adhering to antidiscrimination policies as they pertain to the City’s protected classes.” Ibid.
Around the same time, the Commissioner of the Department of Human Services, Cynthia Figueroa, began investigating the practices of some foster agencies in the City. Pet. App. 14a-15a. She called all of the faithbased foster agencies in the City to ask them whether they objected to working with same-sex couples. Id. at 123a. Commissioner Figueroa also called a single secular agency because she “ha[d] a good relationship” with its chief executive officer. Id. at 304a. “As to all of the other nonreligious foster care agencies in the city, [she] did not call them to ask them their policy about LGBT couple applicants.” Ibid. None of the agencies that the Commissioner called, apart from Catholic Social Services and Bethany Christian Services, responded that it objected to certifying same-sex couples as foster parents. Id. at 14a-15a.
Soon thereafter, Commissioner Figueroa met with Catholic Social Services to discuss the agency’s policies. Pet. App. 15a. At the meeting, Catholic Social Services explained that it had been serving foster children in the City for over 100 years. Id. at 305a. Commissioner Figueroa responded that “times have changed” and that “women didn’t have the rights and African Americans didn’t have the rights” 100 years ago that they do now. Ibid. According to a representative of the agency who was present, Commissioner Figueroa also said that the agency “should be listening more to Pope Francis than the Archbishop and the Archdiocese’s position on this.” Id. at 269a. Commissioner Figueroa admitted saying

6
that “it would be great if we followed the teachings of Pope Francis,” as she understood them, but indicated that she “d[id]n’t recall * * * specifically” whether she had referred to the Archbishop or the Archdiocese. Id. at 306a.
After the meeting ended, the City informed Catholic Social Services that it would no longer refer new foster children to the agency for placement. Pet. App. 15a16a. As a result, Catholic Social Services could neither certify any new applicants as foster parents, nor place any new foster children with foster parents that it had already certified. Ibid.
The City described the reasons for its actions in two letters to Catholic Social Services. See Pet. App. 149a152a; id. at 165a-172a. In the first, the City invoked the City’s Fair Practices Ordinance, which prohibits discrimination on the basis of sexual orientation in places of public accommodation. Id. at 149a-150a. In the second, the City invoked a provision that allowed it to terminate the contract “for any reason, including, without limitation, the convenience of the City.” Id. at 166a167a (citation omitted). The City also invoked Provision 3.21 of the Professional Services Contract, which stated: “[A] Provider 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 [the Department of Human Services’] applicable standards as listed in the Provider Agreement, unless an exception is granted by the Commissioner * * * in his/her sole discretion.” Id. at 167a (emphasis omitted). In addition, the second letter stated that “any fur-

7
ther contracts with [Catholic Social Services] will be explicit” in prohibiting discrimination because of sexual orientation. Id. at 170a.
B. Proceedings Below
1. In May 2018, petitioners sued the City in federal court. Pet. App. 54a. In June 2018, petitioners moved for a preliminary injunction, seeking an order compelling the City to resume placement of foster children through Catholic Social Services. Ibid.
The district court denied the motion for a preliminary injunction. Pet. App. 52a-132a. As relevant here, the court rejected petitioners’ contention that the City’s refusal to place foster children through Catholic Social Services violated the Free Exercise Clause of the First Amendment. Id. at 79a-101a. The court noted that, under this Court’s decision in Employment Division v. Smith, 494 U.S. 872 (1990), a law that burdens religious exercise is not subject to strict scrutiny if it is neutral and generally applicable. Pet. App. 80a. The court concluded that the City’s policies were neutral and generally applicable and that there was “insufficient evidence to support the conclusion that [the City] explicitly targeted [Catholic Social Services] for religious reasons.” Id. at 101a.
While the motion for a preliminary injunction remained pending, the City’s annual contract with Catholic Social Services for Fiscal Year 2018 expired. Pet. App. 25a. The City insisted that its Fiscal Year 2019 contracts with foster agencies include “new, explicit language forbidding discrimination on the ground of sexual orientation as a condition of contract renewal.” Ibid. Yet the City also established a new “Waiver/Exemption Committee” to grant “ ‘waivers of, or exemptions from,

8
City contracting requirements.’ ” City Resps. Br. in Opp. 15 (citation omitted).
2. The court of appeals affirmed. Pet. App. 1a-51a. The court of appeals reasoned that, because the Fiscal Year 2018 contract had expired, any dispute about the City’s enforcement of that contract was “now moot.” Pet. App. 25a. The court believed that the only remaining issue was whether “[the City] may insist on the inclusion of new, explicit language forbidding discrimination on the ground of sexual orientation as a condition of contract renewal, or whether it must offer [Catholic Social Services] a new contract that allows it to continue engaging in its current course of conduct.” Ibid. As relevant here, the court of appeals concluded that the City’s new contractual language amounted to a neutral and generally applicable policy and therefore complied with the Free Exercise Clause. Pet. App. 23a-38a. In the court’s view, there was insufficient evidence that the City had “treated [Catholic Social Services] differently because of its religious beliefs.” Id. at 32a. The court rejected petitioners’ reliance on the statement in the city council’s resolution that “Philadelphia has laws in place to protect its people from discrimination that occurs under the guise of religious freedom,” explaining that the statement “falls into [a] grey zone” because it “could express contempt for religion or could merely state the well-established legal principle that religious belief will not excuse compliance with general civil rights laws.” Ibid. The court also rejected petitioners’ reliance on Commissioner Figueroa’s statements at their meeting, acknowledging that “some might think” that those statements were “improper,” but ultimately concluding that “[t]he First Amendment does not pro-

9
hibit government officials working with religious organizations in this kind of partnership from speaking those organizations’ language and making arguments they may find compelling from within their own faith’s perspective.” Id. at 33a. The court likewise found it insignificant that the Commissioner had targeted religious foster agencies for investigation; in the court’s view, Commissioner Figueroa “had little reason to think that nonreligious agencies might have a similar policy.” Ibid.
SUMMARY OF ARGUMENT
While the petition for a writ of certiorari raises the question whether to overrule Employment Division v. Smith, 494 U.S. 872 (1990), this Court need not decide that question here. Even under Smith, governmental actions that substantially burden religious exercise are subject to strict scrutiny unless they are carried out under neutral and generally applicable laws, free from hostility toward religious beliefs. Philadelphia’s actions do not satisfy those requirements, for two independent reasons.
First, Philadelphia has impermissibly discriminated against religious exercise in its approach to exemptions. This Court has long recognized that a law is not neutral and generally applicable if it allows government officials to grant individualized exemptions, because the application of such a rule in any particular case depends on a government official’s discretionary decision to grant or withhold an exemption. A law also is not neutral and generally applicable if it excludes from its scope secular conduct that undercuts the government’s asserted interests to a similar or greater degree than the religious conduct that it covers. Here, Philadelphia not only has allowed for individualized exemptions, but also

10
has applied its policies in a manner that excludes from their scope wide swaths of conduct that undercut the City’s asserted interests to a similar or greater degree than the conduct by Catholic Social Services. Strict scrutiny therefore applies, and the City cannot satisfy it.
Second, Philadelphia’s actions also reflect unconstitutional hostility toward Catholic Social Services’ religious beliefs. The City singled out religious organizations for investigation; suggested that religious beliefs are merely a pretext for discrimination; imposed unnecessarily severe restrictions on Catholic Social Services’ participation in the foster-care program; and tried to persuade Catholic Social Services that its understanding of Catholic doctrine was outmoded and inconsistent with the views of Pope Francis, as the City understood them. The City has thus unconstitutionally “passe[d] judgment upon or presuppose[d] the illegitimacy of religious beliefs and practices.” Masterpiece Cakeshop, Ltd. v. Colorado Civil Rights Comm’n, 138 S. Ct. 1719, 1731 (2018).
ARGUMENT
In Employment Division v. Smith, 494 U.S. 872 (1990), this Court held that the enforcement of neutral and generally applicable laws against conduct that is religiously motivated ordinarily does not trigger strict scrutiny under the Free Exercise Clause, even if those laws impose a substantial burden on religious exercise. Id. at 877-879. That decision prompted Congress to enact the Religious Freedom Restoration Act of 1993, 42 U.S.C. 2000bb et seq., which the government has found establishes an administrable regime at the federal level that protects both religious liberty and governmental flexibility. Smith continues to apply to state

11
and local practices, though, and its validity has been questioned by some Justices of this Court. See, e.g., City of Boerne v. Flores, 521 U.S. 507, 566 (1997) (Breyer, J., dissenting); Church of the Lukumi Babalu Aye, Inc. v. City of Hialeah, 508 U.S. 520, 571-577 (1993) (Lukumi) (Souter, J., concurring in part and concurring in the judgment); cf. Kennedy v. Bremerton Sch. Dist., 139 S. Ct. 634, 637 (2019) (statement of Alito, J., respecting the denial of certiorari) (noting that Smith “drastically cut back on the protection provided by the Free Exercise Clause”).
Although the petition for a writ of certiorari raises the question whether Smith should be overruled, this Court need not decide that question in this case. Regardless of whether Smith was correctly decided, Philadelphia’s actions here violate the Constitution. Even under Smith, laws that burden religious exercise are subject to strict scrutiny if they lack neutrality or general applicability. See Masterpiece Cakeshop, Ltd. v. Colorado Civil Rights Comm’n, 138 S. Ct. 1719, 1731 (2018); Lukumi, 508 U.S. at 531-534. Under that principle, any law that restricts religious conduct but authorizes exemptions for comparable secular conduct is necessarily subject to strict scrutiny and is ordinarily unconstitutional. Separately, a law also violates the Free Exercise Clause if its adoption or enforcement reflects hostility to religion. In this case, Philadelphia’s actions are unconstitutional under either approach. The City has authorized individualized exceptions and effectively exempted comparable secular conduct, which establishes that the policy is not neutral and generally applicable and is sufficient to render the City’s denial of a religious exemption unconstitutional. In addition, the surrounding context makes clear that the

12
adoption and enforcement of the City’s policy reflect impermissible hostility to religion.
A. Laws That Lack Neutrality Or General Applicability
Are Subject To Strict Scrutiny
However far the protections of the Free Exercise Clause reach, it is settled law that, “[a]t a minimum, the protections of the Free Exercise Clause pertain if the law at issue discriminates against some or all religious beliefs or regulates or prohibits conduct because it is undertaken for religious reasons.” Lukumi, 508 U.S. at 532. If a “law burdening religious practice” is “not neutral or not of general application,” it “must undergo the most rigorous of scrutiny”—a standard that a law lacking in neutrality or general applicability will almost always fail. Id. at 546.
Those principles apply in a straightforward way to a law that “discriminate[s] on its face” against religion, but the Free Exercise Clause “extends beyond” such “facial discrimination,” also “ ‘forbid[ding] subtle departures from neutrality,’ and ‘covert suppression of particular religious beliefs.’ ” Lukumi, 508 U.S. at 533-534 (citations omitted). For example, in Lukumi, the Court held invalid a local government’s adoption of ordinances that effectively prohibited animal sacrifices at a planned Santeria church. Id. at 526-528. Although the Court found no “conclusive” evidence of discrimination against religion on the face of the ordinances, it “reject[ed] the contention” that its “inquiry must end with the text of the laws at issue.” Id. at 534. The Court instead examined the secular exemptions the local government had allowed, the circumstances in which the government had acted, and the purposes it had sought to advance. See id. at 534-540, 542-546. That close re-

13
view led the Court to hold that the ordinances were neither neutral nor generally applicable and thus were subject to (and could not survive) strict scrutiny. Id. at 546.
Similarly, in Masterpiece Cakeshop, the Court addressed the Colorado Civil Rights Commission’s application of the Colorado Anti-Discrimination Act to punish a baker who had declined to bake a wedding cake for a same-sex couple’s wedding reception. See 138 S. Ct. at 1723. Examining remarks by Commission officials during the Commission’s investigation, as well as inconsistencies in the Commission’s enforcement of the statute, this Court concluded that the Commission had failed “to proceed in a manner neutral toward and tolerant of [the baker’s] religious beliefs.” Id. at 1731. The Court accordingly concluded that “the Commission’s order must be invalidated,” even though the Act itself did not discriminate against religion on its face. Id. at 1732.
As those cases illustrate, the requirements of neutrality and general applicability are “interrelated.” Lukumi, 508 U.S. at 531. Indeed, the terms “substantially overlap.” Id. at 557 (Scalia, J., concurring in part and concurring in the judgment). Regardless of doctrinal labels, the requirements taken together establish at least two critical propositions. First, if the law in question prohibits religious conduct but authorizes exemptions for comparable secular conduct, that unequal treatment by itself triggers—and almost always fails— strict scrutiny. Second, whether or not the law allows for such exemptions, courts must carefully examine the context of the law’s adoption and enforcement to determine whether the government has demonstrated impermissible hostility to religious beliefs.

14
1. A law that regulates religious conduct but authorizes
individualized exemptions or exempts comparable
secular conduct lacks neutrality and general
applicability
a. In order to satisfy the requirements of neutrality and general applicability, the government must, at the very least, pursue its interests against religious and secular conduct alike. That requirement follows from the bedrock principle that the government may not discriminate against religion in general (or a specific religion in particular). When the government pursues its interests “against conduct with a religious motivation” but not against comparable conduct with a secular motivation, the government “of necessity devalues religious reasons for [the conduct] by judging them to be of lesser import than nonreligious reasons.” Lukumi, 508 U.S. at 537-538, 543. That value judgment is a form of “discriminatory treatment” that necessarily triggers strict scrutiny under the Free Exercise Clause. Id. at 538.
Applying strict scrutiny when the government fails to accommodate religious interests at least as much as it accommodates comparable secular interests (or favored religious interests) also promotes religious liberty. “[T]here is no more effective practical guaranty against arbitrary and unreasonable government than to require that the principles of law which officials would impose upon a minority must be imposed generally.” Railway Express Agency, Inc. v. New York, 336 U.S. 106, 112 (1949) (Jackson, J., concurring). By contrast, “nothing opens the door to arbitrary action so effectively as to allow those officials to pick and choose only a few to whom they will apply legislation and thus to escape the political retribution that might be visited upon

15
them if larger numbers were affected.” Id. at 112-113; see Larson v. Valente, 456 U.S. 228, 245-246 (1982) (applying that principle to the Free Exercise Clause). Accordingly, burdens on religious exercise are likely to be more severe and less justified when secular society is able to exempt other, favored interests; conversely, the burdens are likely to be less severe and more justified when secular society must also impose those burdens “upon itself.” Lukumi, 508 U.S. at 545 (citation omitted).
b. Under those principles, a government’s adoption of a policy that reserves discretion to grant individualized exemptions is enough, by itself, to trigger strict scrutiny for the denial of a religious exemption. Indeed, a law subject to “ad hoc” exceptions is “the antithesis of a neutral and generally applicable policy.” Ward v. Polite, 667 F.3d 727, 739-740 (6th Cir. 2012) (Sutton, J.).
This Court’s decision in Sherbert v. Verner, 374 U.S. 398 (1963)—as interpreted in Smith—illustrates that principle. In Sherbert, a state law denied unemployment benefits to anyone who had declined to accept available employment, unless the person had “good cause” for refusing the work. Id. at 401. The goodcause standard “created a mechanism for individualized exemptions” from the requirement to accept available work. Smith, 494 U.S. at 884 (citation omitted). Because the State retained the power to grant individualized exemptions, its refusal to grant one for religious reasons was subject to strict scrutiny. Sherbert, 374 U.S. at 401 n.4; see Smith, 494 U.S. at 884.
This Court has reaffirmed that principle in numerous cases since Sherbert. For example, in Bowen v. Roy, 476 U.S. 693 (1986), a plurality of the Court explained

16
that, when a State creates “a mechanism for individualized exemptions,” “its refusal to extend an exemption to an instance of religious hardship” must undergo strict scrutiny. Id. at 708. In Smith, the Court explained that “where the State has in place a system of individual exemptions, it may not refuse to extend that system to cases of ‘religious hardship’ without compelling reason.” 494 U.S. at 884 (citation omitted). And in Lukumi, the Court again held that “in circumstances in which individualized exemptions from a general requirement are available, the government ‘may not refuse to extend that system to cases of “religious hardship” without compelling reason.’ ” 508 U.S. at 537 (citation omitted).
This Court’s cases interpreting the Free Speech Clause support that reading of the Free Exercise Clause. Under those cases, the government’s retention of discretion to grant ad hoc exemptions to an otherwise content-neutral regulation of speech suffices to trigger strict scrutiny. See, e.g., Forsyth County v. Nationalist Movement, 505 U.S. 123, 130-133 (1992); Saia v. New York, 334 U.S. 558, 560-561 (1948). The government’s retention of discretion to grant ad hoc exemptions likewise triggers strict scrutiny for application of a regulation that burdens religious exercise.
c. Even if a law burdening religious exercise lacks a system for individualized exceptions, it still triggers strict scrutiny if the government excludes secular conduct from its scope in a way that produces “substantial” “underinclusion” with respect to the government’s asserted ends. Lukumi, 508 U.S. at 543. Then-Judge Alito’s opinion for the Third Circuit in Fraternal Order of Police v. City of Newark, 170 F.3d 359, cert. denied, 528 U.S. 817 (1999), illustrates that principle. In that

17
case, a police department that ordinarily forbade officers from wearing beards created a categorical exemption for medical reasons, but refused to grant exemptions for religious reasons. Id. at 360. The court concluded that the police department’s policy lacked neutrality and general applicability because the policy was substantially underinclusive with respect to the asserted interest in promoting uniform appearance among police officers. Id. at 366. The exception “indicate[d] that the Department ha[d] made a value judgment that secular (i.e., medical) motivations for wearing a beard are important enough to overcome its general interest in uniformity but that religious motivations are not.” Ibid. That choice “to provide medical exemptions while refusing religious exemptions” was by itself “sufficiently suggestive of discriminatory intent so as to trigger heightened scrutiny under Smith and Lukumi.” Id. at 365; see Stormans, Inc. v. Wiesman, 136 S. Ct. 2433, 2438 (2016) (Alito, J., dissenting from the denial of certiorari) (reiterating that “[a]llowing secular but not religious” exemptions that undermine the asserted governmental interest is “flatly inconsistent with [Lukumi]”).
Of course, for this concern to arise, the secular conduct exempted must be comparable to the religious conduct with respect to, or otherwise materially undermine, the asserted governmental interest. See Lukumi, 508 U.S. at 542; Fraternal Order of Police, 170 F.3d at 366. The government thus does not trigger strict scrutiny, for example, merely by including an exception to murder laws for homicide motivated by self-defense but not religious belief. At a minimum, though, strict scrutiny does apply where a law, by its terms or through its manner of enforcement, “fail[s] to prohibit nonreligious

18
conduct that endangers [the asserted] interests in a similar or greater degree than [religious conduct].” Lukumi, 508 U.S. at 543.
d. In order to satisfy strict scrutiny, a law must be narrowly tailored to serve a compelling interest. Lukumi, 508 U.S. at 546. A law that pursues asserted interests “against conduct with a religious motivation,” but not against comparable conduct with a secular motivation, “will survive strict scrutiny only in rare cases.” Ibid. The government’s failure to prohibit all conduct that significantly undermines its asserted interest “suggests that [the government itself] has determined that [the interest] is not a transcendent objective.” Carey v. Brown, 447 U.S. 455, 465 (1980); see Lukumi, 508 U.S. at 546-547. In addition, the underinclusiveness of the law raises “serious doubts about whether the government is in fact pursuing the interest it invokes, rather than disfavoring [religious practices].” Brown v. Entertainment Merchants Ass’n, 564 U.S. 786, 802 (2011). Finally, the restriction of religious conduct but not comparable secular conduct indicates that the law lacks narrow tailoring, and “[t]he absence of narrow tailoring suffices to establish the invalidity of [a law]” under strict scrutiny. Lukumi, 508 U.S. at 546.
2. A law also lacks neutrality and general applicability
if the context of its adoption or enforcement indicates
hostility to religion
a. Separately, this Court’s cases establish that strict scrutiny also is appropriate if governmental action is tainted by “hostility” to religion. Masterpiece Cakeshop, 138 S. Ct. at 1729. Courts must survey the record “meticulously” to ensure that the government does not act on the basis of such hostility. Lukumi, 508 U.S. at 534 (citation omitted).

19
In conducting that meticulous review, a court may properly consider whether “the historical background of the decision under challenge” reflects hostility to religion. Masterpiece Cakeshop, 138 S. Ct. at 1731 (citation omitted). For example, if a decision follows “a series of official actions taken for invidious purposes,” the “sequence of events leading up to the challenged decision” may suggest that the decision is discriminatory. Village of Arlington Heights v. Metropolitan Hous. Dev. Corp., 429 U.S. 252, 267 (1977). More indirectly, adoption of a law in reaction to particular religious conduct may suggest that the government is impermissibly targeting religious exercise, rather than simply targeting a given type of conduct without regard to its religious motivation. Ibid. That is especially so if the government previously had “always” acted in a particular way, but “suddenly” changed course “when [it] learned” of the conduct at issue. Ibid.
Strict scrutiny likewise is appropriate if the circumstances surrounding enforcement of the law show that the government has not “applied [it] in a manner that is neutral toward religion.” Masterpiece Cakeshop, 138 S. Ct. at 1732. A variety of circumstances may demonstrate such a lack of neutrality. For example, a court may properly consider comments made by government officials when formally enforcing the law. Id. at 1729. A court also may properly consider how the government has enforced the law in practice; for example, the government triggers strict scrutiny if it treats religious objections and secular objections in a manner that “could reasonably be interpreted as being inconsistent.” Id. at 1730. Finally, if the government enforces its law in a manner that “visits ‘gratuitous re-

20
strictions’ on religious conduct,” the government’s decision to prohibit “more religious conduct than is necessary to achieve [the] stated ends” may provide evidence that the government “seeks not to effectuate the stated governmental interests, but to suppress the conduct because of its religious motivation.” Lukumi, 508 U.S. at 538 (citation omitted).
b. Governmental action tainted by hostility to religion fails strict scrutiny almost by definition. This Court has never recognized even a legitimate governmental interest—much less a compelling one—that justifies hostility toward religion. Quite the contrary, the Court has explained that hostility to religion is “odious to our Constitution” and “cannot stand.” Trinity Lutheran Church v. Comer, 137 S. Ct. 2012, 2025 (2017).
B. Philadelphia’s Policy Is Not Neutral And Generally
Applicable, But Instead Unconstitutionally Discrimi-
nates Against Religion
Under the foregoing principles, Philadelphia’s actions in this case burdened Catholic Social Services’ exercise of religion in a manner that the Free Exercise Clause prohibits. Philadelphia has defended its actions by arguing that it is simply enforcing neutral and generally applicable antidiscrimination policies, and that in any event it has a compelling interest in excluding Catholic Social Services from its foster-care program for as long as Catholic Social Services adheres to its religious objection to endorsing same-sex marriages. See City Resps. Br. in Opp. 23-25, 27-28. But those arguments are mistaken. The City has both retained the formal power to create individualized exemptions and granted de facto exemptions—each of which triggers strict scrutiny that the City cannot satisfy. Separately, the application of the City’s policies in this case was tinged with

21
hostility toward religious exercise, not the “neutrality that the Free Exercise Clause requires.” Masterpiece Cakeshop, 138 S. Ct. at 1731.
1. The City’s refusal to extend its system of exemptions
to Catholic Social Services discriminates against re-
ligion and violates the Free Exercise Clause
This Court can and should resolve this case on the straightforward ground that the policies the City has invoked for excluding Catholic Social Services are subject to numerous exemptions—and yet the City has refused to grant such an exemption to accommodate Catholic Social Services’ religious views.
The City has relied principally on the Fair Practices Ordinance, a local ordinance that prohibits discrimination in places of public accommodation on the basis of traits such as sexual orientation or race, and on a contractual provision requiring compliance with that ordinance. The City also has invoked Provision 3.21 of the Professional Services Contract, which the City has interpreted in this case to require foster agencies to serve all qualified foster parents who seek their services. Finally, the City has insisted on incorporating new language into its contracts expressly prohibiting discrimination on the basis of sexual orientation. The record shows, however, that the City has both created a mechanism for individualized exemptions to those policies and also granted de facto exemptions for secular conduct. Each undercuts its asserted interests no less than Catholic Social Services’ religious conduct. Either one of those by itself would suffice to trigger strict scrutiny, which the City cannot satisfy here.
a. The City has expressly codified a system for making individualized exemptions, but has refused to extend such an exemption to Catholic Social Services.

22
Provision 3.21 states that the Commissioner may grant “an exception” to its requirements “in his/her sole discretion.” Pet. App. 167a. And while the City has modified its contracts to bolster its exclusion of Catholic Social Services, it has only reinforced its ability to make individualized exceptions, formally vesting that authority in a new “Waiver/Exemption Committee” in the City’s Law Department. See City Resps. Br. in Opp. 15 & n.4; Pet. App. 25a. The City, however, has stated flatly that “the Commissioner has no intention of granting an exception” to enable Catholic Social Services to avoid violating its religious beliefs regarding endorsement of same-sex marriages. Pet. App. 168a.
Having “created a mechanism for individualized exemptions,” the City “may not refuse to extend that system to cases of religious hardship without compelling reason.” Smith, 494 U.S. at 884 (citations and internal quotation marks omitted). And the City cannot escape strict scrutiny by contending that the record contains no evidence it has ever, in fact, granted individualized exemptions. See City Resps. Br. in Opp. 23-24. That contention ignores the de facto exemptions the City has allowed, see pp. 23-24, infra; and even setting those to the side, it makes no legal difference. As this Court has explained, a law that burdens religious exercise is subject to strict scrutiny if the government “has in place” a system of individualized exemptions, Smith, 494 U.S. at 884, or makes such exemptions “available,” Lukumi, 508 U.S. at 537—not just when they have been granted. That is because such a law’s application in any given case depends on a government official’s discretionary decision about whether to grant an exemption, which is the antithesis of general applicability and neutrality.

23
b. The City’s creation of formal mechanisms by which it can grant individualized exemptions is enough, by itself, to trigger strict scrutiny. In addition, though, the City has created a series of de facto exemptions for comparable secular conduct that independently warrant strict scrutiny here.
On its face, the Fair Practices Ordinance prohibits, as a form of “discrimination,” any “distinction, * * * differentiation or preference in the treatment of a person on the basis of ” race, ethnicity, sexual orientation, disability, marital status, familial status, or any other protected characteristic. Phila. Code § 9-1102(1)(e) (2020); see id. § 9-1106(1) (2020) (listing protected characteristics). Despite that seemingly categorical prohibition, however, city officials tolerate, and indeed themselves rely on, various distinctions, differentiations, and preferences on the basis of traits covered by the Fair Practices Ordinance. For example, the City’s official guide for prospective foster parents explains that “[e]ach agency has slightly different requirements [and] specialties,” Pet. App. 197a, and city officials acknowledged in the district court that, in other contexts, the City tolerates “specialized providers * * * that only work with” children identified by protected traits, id. at 296a (emphasis added). Other agencies focus their outreach only on foster families of particular ethnicities, id. at 263a-264a, and city officials themselves consider race and disability in deciding whether to place foster children with particular families, id. at 295a-296a. Moreover, the City allows foster agencies to account for a potential foster parent’s mental or physical disability and familial status (including marital status) in deciding whether to approve that parent’s application. See id. at 13a.

24
These practices show that the City has demanded that Catholic Social Services adhere to what the City understands to be the precise letter of its Fair Practices Ordinance, while at the same time allowing (or even engaging in) conduct that violates that same reading. Philadelphia has failed to articulate any “principled rationale for the difference in treatment.” Masterpiece Cakeshop, 138 S. Ct. at 1731. And while the departures from the Fair Practices Ordinance’s facial requirements do not appear to be formally codified in any official City document, that does not insulate them from searching review. The Free Exercise Clause prohibits “covert” discrimination against religion no less than overt discrimination. Lukumi, 508 U.S. at 534 (citation omitted).
Moreover, much of the exempted conduct “fall[s] within the city’s [asserted] interest.” Lukumi, 508 U.S. at 544. The City tries to defend its unequal treatment by recharacterizing its interest as ensuring that agencies do not “categorically exclude prospective foster parents based on protected traits.” City Resps. Br. in Opp. 23-24 (emphasis added). But the Fair Practices Ordinance prohibits any “distinction” or “differentiation” based on protected criteria, Phila. Code § 91102(1)(e) (2020), not just “categorical” exclusion. And regardless, the record shows that the City has allowed some other (secular) agencies to work “only” with certain children identified by protected characteristics. Pet. App. 296a. The City has thus seemingly determined that its interest in avoiding categorical treatment of individuals with protected traits should be pursued “against conduct with a religious motivation,” but not against comparable conduct with a secular motivation. Lukumi, 508 U.S. at 543.

25
Philadelphia also claims that its policies seek to avoid “the exclusion of qualified parents on grounds unrelated to the best interests of children.” City Resps. Br. in Opp. 24. Again, though, the ordinance by its terms prohibits all distinctions based on protected criteria, and the City’s invocation of an unwritten “best interests of children” exception is just another way of saying that the City has not applied that policy in an evenhanded manner. Instead, it has allowed City officials to make ad hoc value judgments that accommodate secular agencies’ views about how best to serve children (such as by giving preference to parents of a particular race) but that discount religious agencies’ views (including Catholic Social Services’ view about opposite-sex households). And regardless, denying an exception here produces the very outcome that Philadelphia ostensibly seeks to avoid—it excludes foster families affiliated with Catholic Social Services not because of the best interests of the child, but because of the City’s disagreement with this religious organization’s view of same-sex marriage.
Philadelphia further claims that its policies seek to avoid a “signal to [the LGBTQ] community that [its] rights are not protected.” City Resps. Br. in Opp. 6 (citation omitted; brackets in original). But Philadelphia’s approach in the context of disability and race poses a comparable risk: telling parents with disabilities that they cannot serve as foster parents, or declining to place a child with particular foster parents because of their race, risks sending the same message to those parents. That does not necessarily mean that Philadelphia is acting unreasonably in making such exceptions to its antidiscrimination polices; it might well determine, for example, that the benefits of considering disability in

26
the foster-care system outweigh the cost of making some individuals feel excluded or marginalized. But by tolerating secular reasons for imposing such costs, yet refusing to accept religious reasons for imposing the same costs, the City is “devalu[ing] religious reasons” and “judging them to be of lesser import than nonreligious reasons.” Lukumi, 508 U.S. at 537-538.
c. Philadelphia’s actions cannot survive strict scrutiny. As just discussed, the City has authorized city officials to grant formal exemptions from its policy any time they wish, and it has also granted numerous informal exemptions through its pattern of inconsistent enforcement. Thus, notwithstanding a governmental interest in preventing discrimination on the basis of protected traits, the City has failed to “demonstrate its commitment to advancing this interest * * * evenhandedly.” Florida Star v. B. J. F., 491 U.S. 524, 540 (1989). As a result, that interest cannot be regarded as compelling under the circumstances of this case. In addition, the City’s pattern of enforcement renders its law substantially underinclusive in practice, demonstrating an “absence of narrow tailoring” and “establish[ing] the invalidity” of the City’s policy. Lukumi, 508 U.S. at 546.
2. The context of the City’s actions reveals impermissi-
ble hostility toward religion
The City’s actions are also unconstitutional because the record shows the City failed to “proceed in a manner neutral toward and tolerant of [Catholic Social Services’] religious beliefs,” as it was “obliged [to do] under the Free Exercise Clause.” Masterpiece Cakeshop, 138 S. Ct. at 1731. The evidence demonstrates the City’s impermissible hostility in numerous ways, and so the decision resulting from that hostility—exclusion of Catholic Social Services from the foster-care program—

27
“cannot stand.” Trinity Lutheran Church, 137 S. Ct. at 2025.
a. At the outset, the record shows that the City’s decisions about how to interpret and enforce its policies came as a direct response to learning of Catholic Social Services’ religious objections. The Deputy Commissioner of the Department of Human Services, for example, testified that before the events giving rise to this case, she had never once in her nearly two decades at the Department communicated to foster agencies that they were required to perform home studies for everyone who requests them or that they could not make distinctions or preferences for or against different groups. Pet. App. 247a-248a. Similarly, Commissioner Figueroa testified that, as Commissioner of the Department, she could not recall ever “do[ing] anything to make sure that people at [the Department] follow the Fair Practices Ordinance when doing foster care work.” Id. at 293a. Upon learning of Catholic Social Services’ religious views about endorsing same-sex marriages, however, the City began articulating a requirement that foster agencies must provide home studies for anyone who asks, and may not distinguish favorably or unfavorably among different groups of potential foster parents. Thus, just as the ordinances in Lukumi were adopted “in direct response to the opening of the Church,” 508 U.S. at 540, the City’s policy here was adopted in direct response to learning of Catholic Social Services’ religious views.
The City’s stated rationale for that policy, moreover, evolved over time, demonstrating that it was adopting a new position in response to Catholic Social Services’ religious exercise rather than simply enforcing an exist-

28
ing, neutral policy. Initially, the City justified its actions by invoking a provision of the contract with Catholic Social Services stating that “[t]his Contract is entered into under the terms of * * * the Fair Practices Ordinance.” Pet. App. 59a (citation omitted); see id. at 149a-150a. But after Catholic Social Services noted this approach was inconsistent with the City’s own past actions, see id. at 153a-164a, the City articulated a number of new rationales for its decision, see id. at 165a172a. In particular, the City relied on Provision 3.21 of its contract with Catholic Social Services, which states that an agency “shall not reject a child or family for Services * * * for any * * * reason if the profiles of such child or family are consistent with Provider’s Scope of Services or [the Department of Human Services’] applicable standards,” subject to exceptions granted in the Commissioner’s “sole discretion.” Id. at 58a-59a (citation omitted); see id. at 167a. The City also claimed that it had “the unilateral right under the contract to terminate or suspend the contract, regardless of any breach or lack thereof by [Catholic Social Services], ‘for any reason, including, without limitation, the convenience of the City.’ ” Id. at 166a-167a (citation omitted). And eventually, the City decided to insert new language in its future contracts with foster agencies expressly forbidding discrimination on the basis of sexual orientation, again subject to individualized exceptions. Id. at 25a; City Resps. Br. in Opp. 15.
This progression from one rationale to the next suggests that the City was not seeking to neutrally enforce existing, generally applicable law. Cf. Christian Legal Soc’y v. Martinez, 561 U.S. 661, 737 (2010) (Alito, J., dissenting) (noting that “[s]ubstantial changes over time in [the] proferred reason for [the] decision” themselves

29
“support a finding of pretext”) (citation omitted; first set of brackets in original). That inference is particularly strong here because the City eventually decided to add language to its future contracts, effectively conceding that its existing policies did not require Catholic Social Services to act in contravention of its religious beliefs. See pp. 6-7, supra. And of course Catholic Social Services’ long practice and participation as a foster agency provide a further indication that the City’s rules were not understood to require Catholic Social Services to certify foster parents without regard to its religious beliefs.
b. Making matters worse, the City impermissibly targeted religious organizations for enforcement of its newly articulated policies. Commissioner Figueroa testified that, in determining whether foster-care agencies were complying with the antidiscrimination requirements of their contracts, the City focused only on religious agencies, making just a single inquiry to a secular foster-care agency (because the Commissioner had a “good relationship” with its Chief Executive Officer). Pet. App. 304a. City officials made no effort to determine whether other secular agencies perform home studies for everyone who requests them, or show preference for or against individuals who fall within particular groups. Ibid.
The City’s investigation thus “singled out” religious organizations for “discriminatory treatment.” Lukumi, 508 U.S. at 538. It did so, moreover, even though there was ample reason to believe that secular organizations were considering protected criteria listed in the Fair Practices Ordinance as well. See p. 23, supra. That pattern of discriminatory enforcement violates “the First Amendment’s guarantee that our laws be applied in a

30
manner that is neutral toward religion.” Masterpiece Cakeshop, 138 S. Ct. at 1732. At a minimum, it shows that Commissioner Figueroa relied on religious stereotypes to guide enforcement, assuming that religious organizations are less likely to comply with the City’s requirements than are secular organizations. Cf. Bush v. Vera, 517 U.S. 952, 968 (1996) (“[T]o the extent that race is used as a proxy for political characteristics, a racial stereotype requiring strict scrutiny is in operation.”); J. E. B. v. Alabama ex rel. T. B., 511 U.S. 127, 143 (1994) (“[A potential juror’s] gender simply may not serve as a proxy for bias.”).
The restrictions Philadelphia imposed on religious organizations were also “gratuitous” in light of the City’s stated objectives. Lukumi, 508 U.S. at 538 (citation omitted). When Catholic Social Services indicated that it intended to adhere to its religious beliefs, city officials put in place a “referral freeze.” Pet. App. 269a270a. That meant that Philadelphia would not only stop allowing Catholic Social Services to arrange for new foster parents (the context in which Philadelphia’s concern about discrimination arose), but also stop referring children for placement with long-established foster families merely because of the families’ affiliation with Catholic Social Services. For example, one of the original individual plaintiffs in this case, Cecilia Paul, had provided foster care to Philadelphia children for 46 years, but the City stopped making ordinary foster-care referrals to her based solely on her affiliation with Catholic Social Services. See id. at 226a-228a.
Philadelphia thus “proscribe[d] more religious conduct than [wa]s necessary to achieve [its] stated ends.” Lukumi, 508 U.S. at 538. Indeed, by effectively exclud-

31
ing foster parents affiliated with Catholic Social Services, the City’s measures undermined Philadelphia’s stated goal of maximizing the number of available foster parents. And while Philadelphia has expressed concern that same-sex couples who are interested in becoming foster parents might feel marginalized if Catholic Social Services refused to perform a home study for them, the City could have addressed its asserted concern in numerous other ways, including by informing potential foster families of the City’s commitment to diversity in its foster-care program and the availability of other agencies better suited to working with particular applicants. See Pet. App. 220a (“Referrals are made all the time.”); id. at 287a (testimony from Commissioner Figueroa that “[t]o [her] knowledge, [the Department of Human Services] has received no complaints against Catholic [Social Services] for operating according to its religious beliefs” and that “[t]o [her] knowledge, [the Department] ha[s] received no complaints against Catholic [Social Services] for failing to perform a home study for someone who wanted it”).
c. Those discriminatory actions amply demonstrate hostility toward Catholic Social Services’ religious beliefs, but the record in this case even contains express statements that confirm that hostility.
The first such statement came from the city council. After learning from a local newspaper that two religious foster agencies—Catholic Social Services and Bethany Christian Services—might be unwilling to endorse same-sex couples as foster parents, the council adopted a resolution demanding an investigation into whether agencies “discriminate against prospective LGBTQ foster parents.” Pet. App. 146a. The resolution asserted

32
that the two religious agencies “have policies that prohibit the placement of children with LGBTQ people based on religious principles, although the City of Philadelphia has laws in place to protect its people from discrimination that occurs under the guise of religious freedom.” Id. 147a (emphasis added).
That resolution revealed hostility toward religion in two ways. First, it did not accurately portray the agencies’ positions: Catholic Social Services indicated that it would work with a gay or lesbian individual who desired to be a foster parent, so long as doing so did not require it to endorse a same-sex relationship, see J.A. 188, and Bethany Christian Services in fact did have same-sex couples that it had certified to provide foster care, see id. at 273 (testimony from Commissioner Figueroa that representatives of Bethany Christian Services “were unclear about their ability to serve same-sex couples,” but “ indicated that they actually had same-sex homes that were certified”). And second, by ignoring the organizations’ actual views and suggesting that they were engaged in invidious “discrimination that occurs under the guise of religious freedom,” Pet. App. 147a, the resolution explicitly and formally “disparage[d] * * * religion” as an “insincere” cover for discriminating against gay people. Masterpiece Cakeshop, 138 S. Ct. at 1729. Those expressions of religious hostility are relevant even though the city council plays no direct “role in [Department of Human Services] contracting.” City Resps. Br. in Opp. 7 n.2. A formal resolution of the city council calling for steps against organizations that act “under the guise of religious freedom,” Pet. App. 147a, adopted contemporaneously with a city official’s decision to terminate Catholic Social Services’ participation in the foster-care program, is strong

33
evidence about what motivated that termination— especially given Commissioner Figueroa’s statement during her meeting with Catholic Social Services that the issue “had the attention of top levels of government” in the city, id. at 268a.
Commissioner Figueroa’s own statements during that formal meeting also revealed an impermissible lack of neutrality in their own right. She acknowledged telling the Catholic Social Services representatives in attendance that they should be following “the teachings of Pope Francis” as she understood them, Pet. App. 306a, and one of the other attendees testified that her comments went further—telling Catholic Social Services that “[they] should be listening more to Pope Francis than the Archbishop and the Archdiocese’s position on [same-sex couples].” Id. at 269a. That attendee testified that Figueroa also told the Catholic Social Services representatives that “times have changed, attitudes have changed, science has changed”—implying that it was “time for the Catholic Church * * * to change,” too. Id. at 268a.
That overt hostility toward religious belief and intermeddling with religious doctrine was unconstitutional under Smith, which makes clear that “the First Amendment obviously excludes all ‘governmental regulation of religious beliefs’ ” and that “[t]he government may not * * * lend its power to one or the other side in controversies over religious authority or dogma.” Smith, 494 U.S. at 877 (citation omitted). The court of appeals, though acknowledging that “some might think” the Commissioner’s remarks were “improper,” concluded that they were appropriate because Commissioner Figueroa was “Jesuit-educated,” and was in its view simply making “an effort to reach common ground with

34
[Catholic Social Services’ leaders] by appealing to an authority within their shared religious tradition.” Pet. App. 15a, 33a. But as a city official exercising governmental power to decide whether Catholic Social Services could continue providing foster care in Philadelphia, Commissioner Figueroa had no business “promot[ing] one religion or religious theory against another,” Epperson v. Arkansas, 393 U.S. 97, 104 (1968), by attempting to persuade Catholic Social Services that its views on same-sex marriage were inconsistent with those attributed to Pope Francis and should therefore be changed. At a minimum, the comments demonstrate impermissible hostility to religion when considered in the context of the other evidence of discrimination by the City. Cf. Masterpiece Cakeshop, 138 S. Ct. at 1729 (“Standing alone, these statements are susceptible of different interpretations. * * * In view of the comments that followed, [the view that the comments expressed hostility to religion] seems the more likely.”).
d. In short, the City’s actions and words reflected “animosity to religion or distrust of its practices.” Masterpiece Cakeshop, 138 S. Ct. at 1731 (citation omitted). And just as that impermissible animosity required that the Colorado Civil Rights Commission’s judgment in Masterpiece Cakeshop be “invalidated,” id. at 1732, so too here the City’s hostility toward Catholic Social Services’ religious views requires barring the City from excluding Catholic Social Services from its foster-care program based on the organization’s refusal to endorse same-sex relationships.

35
CONCLUSION
The judgment of the court of appeals should be reversed.
Respectfully submitted.
NOEL J. FRANCISCO Solicitor General Counsel of Record
JOSEPH H. HUNT ERIC S. DREIBAND
Assistant Attorneys General JEFFREY B. WALL
Deputy Solicitor General HASHIM M. MOOPPAN ALEXANDER V. MAUGERI
Deputy Assistant Attorneys General
VIVEK SURI BENJAMIN W. SNYDER
Assistants to the Solicitor General
ELLIOTT M. DAVIS Special Counsel
MICHAEL S. RAAB LOWELL V. STURGILL JR. ERIC W. TREENE
Attorneys
JUNE 2020

 
 No. 19-123

In the Supreme Court of the United States
__________
SHARONELL FULTON, ET AL., Petitioners,
v.

CITY OF PHILADELPHIA, ET AL.,

__________

Respondents.

ON WRIT OF CERTIORARI TO THE UNITED STATES COURT
OF APPEALS F_O_R__T_H__E__T_HIRD CIRCUIT
BRIEF F_O_R__P__E_T_I_T_IONERS

NICHOLAS M. CENTRELLA CONRAD O’BRIEN PC 1500 Market Street Suite 3900 Philadelphia, PA 19102 (215) 864-8098

MARK. L. RIENZI Counsel of Record
LORI H. WINDHAM ERIC C. RASSBACH WILLIAM J. HAUN NICHOLAS R. REAVES JACOB M. COATE THE BECKET FUND FOR
RELIGIOUS LIBERTY 1200 New Hampshire
Ave., NW Washington, DC 20036 mrienzi@becketlaw.org (202) 955-0095

Counsel for Petitioners

QUESTIONS PRESENTED
The City of Philadelphia chose to exclude a religious agency from the City’s foster care system unless the agency agreed to act and speak in a manner inconsistent with its sincere religious beliefs about marriage. The Third Circuit upheld that action under Employment Division v. Smith.
The questions presented are:
1. Whether free exercise plaintiffs can only succeed by proving a particular type of discrimination claim— namely that the government would allow the same conduct by someone who held different religious views—as two circuits have held, or whether courts must consider other evidence that a law is not neutral and generally applicable, as six circuits have held?
2. Whether Employment Division v. Smith should be revisited?
3. Whether a government violates the First Amendment by conditioning a religious agency’s ability to participate in the foster care system on taking actions and making statements that directly contradict the agency’s religious beliefs?

ii
PARTIES TO THE PROCEEDING AND CORPORATE DISCLOSURE STATEMENT
Petitioners are Sharonell Fulton, Toni Lynn Simms-Busch, and Catholic Social Services.
Respondents are the City of Philadelphia, the Department of Human Services for the City of Philadelphia, and the Philadelphia Commission on Human Relations (all of which are original defendants in the case), along with Defendant-Intervenors the Support Center for Child Advocates and Philadelphia Family Pride.
None of the petitioners have any parent entities and they do not issue stock.

iii TABLE OF CONTENTS
Page QUESTIONS PRESENTED .......................................i PARTIES TO THE PROCEEDING AND CORPORATE DISCLOSURE STATEMENT............ii TABLE OF CONTENTS .......................................... iii TABLE OF AUTHORITIES ....................................... v INTRODUCTION ....................................................... 1 OPINIONS BELOW ................................................... 3 JURISDICTION ......................................................... 3 CONSTITUTIONAL PROVISIONS INVOLVED................................................................. 3 STATEMENT OF THE CASE ................................... 3
A. The Catholic Church has served Philadelphia children for more than two centuries. .................................................. 3
B. Philadelphia relies on private agencies to provide foster homes.................... 6
C. Philadelphia excludes CSS from foster care........................................................ 9
D. Philadelphia’s six post hoc justifications.................................................. 12 1. The Fair Practices Ordinance. ................ 13 2. Provision 3.21. ......................................... 13 3. New non-discrimination language.......... 14 4. The City Charter. .................................... 14

iv
5. The “Waiver/Exemption Committee.” ............................................. 15
6. An “updated and more detailed nondiscrimination provision.” ................. 15
E. The proceedings below.................................. 15
SUMMARY OF ARGUMENT .................................. 17
ARGUMENT............................................................. 19
I. Philadelphia violated the First Amendment. ........................................................ 19
A. Smith does not apply to all free exercise cases. ................................................ 19
B. Smith never should have applied to this case.......................................................... 22
C. Philadelphia’s actions unconstitutionally compel speech. ................ 30
D. Philadelphia’s actions fail strict scrutiny. ......................................................... 33
II. Smith should be replaced with a standard that reflects the text, history, and tradition of the Free Exercise Clause................. 37
A. Smith’s predictions all proved wrong............ 37
B. Smith is contrary to constitutional text and history.............................................. 42
C. Smith is a law unto itself. ............................. 47
D. Smith should be revisited and replaced with a standard that is true to the text, history, and tradition of the Free Exercise Clause. .............................. 50
CONCLUSION ......................................................... 52

Cases

v TABLE OF AUTHORITIES

Page(s)

Agency for Int’l Dev. v. AOSI, 570 U.S. 205 (2013) ......................................... 32-33

American Legion v. American Humanist Ass’n, 139 S. Ct. 2067 (2019) .................................... 50, 51

Arlington Heights v. Metropolitan Housing Dev. Corp., 429 U.S. 252 (1977) .............................................. 25

Blackhawk v. Pennsylvania, 381 F.3d 202 (3d Cir. 2004).................................. 25

Boy Scouts of Am. v. Dale, 530 U.S. 640 (2000) .............................................. 34

Buck v. Gordon, No. 1:19-CV-286, 2019 WL 4686425 (W.D. Mich. Sept. 26, 2019) ................................. 41

Burwell v. Hobby Lobby Stores, Inc., 573 U.S. 682 (2014) ........................................ 41, 49

Cantwell v. Connecticut, 310 U.S. 296 (1940) ............................ 19, 22, 48, 51

Central Rabbinical Cong. v. New York City Dep’t of Health & Mental Hygiene, 763 F.3d 183 (2d Cir. 2014).................................. 24

vi Christian Legal Society v. Martinez,
561 U.S. 661 (2010) ........................................ 15, 21
Church of the Lukumi Babalu Aye, Inc. v. City of Hialeah, 508 U.S. 520 (1993) .......................................passim
City of Arlington v. FCC, 569 U.S. 290 (2013) .............................................. 40
City of Boerne v. Flores, 521 U.S. 507 (1997) .......................................passim
Combs v. Homer-Center Sch. Dist., 540 F.3d 231 (3d Cir. 2008).................................. 48
Cutter v. Wilkinson, 544 U.S. 709 (2005) .............................................. 39
District of Columbia v. Heller, 554 U.S. 570 (2008) .............................................. 44
Employment Div. v. Smith, 494 U.S. 872 (1990) .......................................passim
Franchise Tax Bd. of Cal. v. Hyatt, 139 S. Ct. 1485 (2019) .......................................... 37
Fulton v. City of Philadelphia, 139 S. Ct. 49 (2018) .......................................... 8, 15
Gonzales v. Carhart, 550 U.S. 124 (2007) .............................................. 49
Gonzales v. O Centro Espirita Beneficente Uniao do Vegetal, 546 U.S. 418 (2006). ............................................. 38

vii Holt v. Hobbs,
574 U.S. 352 (2015) ............................ 36, 38, 41, 49
Hosanna-Tabor Evangelical Lutheran Church & Sch. v. EEOC, 565 U.S. 171 (2012) .......................................passim
Hurley v. Irish-American Gay, Lesbian & Bisexual Grp., 515 U.S. 557 (1995) ........................................ 30, 35
Janus v. AFSCME, 138 S. Ct. 2448 (2018) ............................... 30-31, 37
Kedroff v. Saint Nicholas Cathedral of Russian Orthodox Church, 344 U.S. 94 (1952) ................................................ 51
Kennedy v. Bremerton Sch. Dist., 139 S. Ct. 634 (2019) ............................................ 49
Locke v. Davey, 540 U.S. 712 (2004) .............................................. 21
Masterpiece Cakeshop, Ltd. v. Colorado Civil Rights Comm’n, 138 S. Ct. 1719 (2018) ...................................passim
McDaniel v. Paty, 435 U.S. 618 (1978) .................................. 19, 21, 22
Midrash Sephardi, Inc. v. Town of Surfside, 366 F.3d 1214 (11th Cir. 2004) ............................ 29

viii Minersville Sch. Dist. Bd. of Educ. v.
Gobitis, 310 U.S. 586 (1940) .............................................. 48
Niemotko v. Maryland, 340 U.S. 268 (1951) .................................. 19, 22, 51
NIFLA v. Becerra, 138 S. Ct. 2361 (2018) .................................... 31, 32
Obergefell v. Hodges, 135 S. Ct. 2584 (2015) ...................................passim
People v. Phillips, Court of General Sessions, City of New York (June 14, 1813).................................... 46
Pierce v. Society of the Sisters of the Holy Names of Jesus & Mary, 268 U.S. 510 (1925) ............................ 20, 22, 47, 51
Reynolds v. United States, 98 U.S. 145 (1878) ................................................ 48
Riley v. National Fed’n of the Blind of N. Carolina, Inc. 487 U.S. 781 (1988) .............................................. 30
Roberts v. U.S. Jaycees, 468 U.S. 609 (1984) .............................................. 34
Sherbert v. Verner, 374 U.S. 398 (1963) ................................... 26-27, 49
Stormans, Inc. v. Wiesman, 136 S. Ct. 2433 (2016) .......................................... 41

ix Thomas v. Review Board,
450 U.S. 707 (1981) .................................. 20, 22, 47
Torcaso v. Watkins, 367 U.S. 488 (1961) ........................................ 19, 22
Trinity Lutheran Church of Columbia, Inc. v. Comer, 137 S. Ct. 2012 (2017) ...................................passim
Turner Broad. Sys., Inc. v. FCC, 512 U.S. 622 (1994) ........................................ 31, 32
United States v. Playboy Entm’t Grp., Inc., 529 U.S. 803 (2000) .............................................. 36
Ward v. Polite, 667 F.3d 727 (2012) ........................................ 24, 29
West Va. St. Bd. of Educ. v. Barnette, 319 U.S. 624 (1943) ........................................ 48, 52
Wisconsin v. Yoder, 406 U.S. 205 (1972) ............................ 20, 22, 47, 48
Wooley v. Maynard, 430 U.S. 705 (1977) .............................................. 30
Statutes
55 Pa. Code § 3700.64........................................ 7, 8, 13
55 Pa. Code § 3700.69.............................................. 8, 9
28 U.S.C. 1254 ............................................................. 3

x 42 U.S.C. 2000bb ....................................................... 39
11 Pa. Stat. § 2633....................................................... 6
23 Pa. Stat. § 6362....................................................... 6
Phila. Code § 9-1101 .................................................. 27
Phila. Code § 9-1102 .................................................. 13
Phila. Code § 9-1106 .................................................. 13
Phila. Code § 21-1801 ................................................ 33
Other Authorities
Stephanie Barclay, The Historical Origins of Judicial Religious Exemptions, Notre Dame L. Rev. (forthcoming 2020) ............................................... 46
Stephanie Barclay & Mark Rienzi, Constitutional Anomalies or AsApplied Challenges? A Defense of Religious Exemptions, 59 B.C. L. Rev. 1595 (2018) ................................................... 49
4 William Blackstone, Commentaries ...................... 45
Catechism of the Catholic Church § 2447...................................................................... 3
Child Placement and Adoption, A Report of the Joint State Government Commission to the General Assembly of the Commonwealth of Pennsylvania (1951)............................................... 4

xi
Richard W. Garnett, The Political (and Other) Safeguards of Religious Freedom, 32 Cardozo L. Rev. 1815 (2011) .................................................................... 48
Luke W. Goodrich & Rachel N. Busick, Sex, Drugs, and Eagle Feathers: An Empirical Study of Federal Religious Freedom Cases, 48 Seton Hall L. Rev. 353 (2018) ............................................................. 38
Phillip A. Hamburger, Exclusion and Equality: How Exclusion from the Political Process Renders Religious Liberty Unequal, 90 Notre Dame L. Rev. 1919 (2015) ................................................... 40
Philip A. Hamburger, A Constitutional Right of Religious Exemption: An Historical Perspective, 60 Geo. Wash. Law Rev. 915 (1992) ............................................ 45
Joe Holden, Supreme Court To Hear Dispute Over Philadelphia Catholic Agency That Won’t Place Foster Children With Same-Sex Couples, CBS News (Feb. 24, 2020) ................................... 10
HRC, All Children—All Families: Participating Agencies (2020)................................ 7
Kurt T. Lash, The Second Adoption of the Free Exercise Clause: Religious Exemptions Under the Fourteenth Amendment, 88 Nw. U. L. Rev. 1106 (1994) ............................................................... 46-47

xii
Douglas Laycock, The Broader Implications of Masterpiece Cakeshop, 2019 BYU L. Rev. 167 (2019) .................................................................... 39
Douglas Laycock, Religious Liberty as Liberty, 7 J. Contemp. Legal Issues 313 (1996) ............................................................. 43
Douglas Laycock, The Remnants of Free Exercise, 1990 Sup. Ct. Rev. 1 (1990) ............ 21, 40
Douglas Laycock & Steven Collis, Generally Applicable Law & the Free Exercise of Religion, 95 Neb. L. Rev. 1 (2016) ................................................................. 29
Douglas Laycock & Luke W. Goodrich, RLUIPA: Necessary, Modest, and Under-Enforced, 39 Fordham Urb. L.J. 1021 (2012) .................................................... 38
Pat Loeb, Backlog of 1,400 Adoption Cases Keeps Hopeful Philly Parents, Children Waiting, Radio.com (Feb. 19, 2019) ............................................................... 12
Christopher C. Lund, Religious Liberty After Gonzales: A Look at State RFRAs, 55 S.D. L. Rev. 466 (2010). ..................... 38
James Madison, Memorial and Remonstrance Against Religious Assessments (1785), National Archives, Library of Congress, Founders Online................................................... 47

xiii
James Madison, Report on the Virginia Resolutions (Jan. 18, 1800) .................................. 43
William P. Marshall, In Defense of Smith and Free Exercise Revisionism, 58 U. Chi. L. Rev. 308 (1991) ............................... 48
Michael W. McConnell, Free Exercise Revisionism and the Smith Decision, 57 U. Chi. L. Rev. 1109 (1990). ............................ 43
Michael W. McConnell, Freedom from Persecution or Protection of the Rights of Conscience?: A Critique of Justice Scalia’s Historical Arguments in City of Boerne v. Flores, 39 Wm. & Mary L. Rev. 819 (1998)................................. 44, 45
Michael W. McConnell, The Origins and Historical Understanding of Free Exercise of Religion, 103 Harv. L. Rev. 1409 (1990) ............................................passim
Louise Melling, ACLU: Why we can no longer support the federal ‘religious freedom’ law, Wash. Post (June 25, 2015) ..................................................................... 41
Branton J. Nestor, The Original Meaning and Significance of Early State Provisos to the Free Exercise of Religion, 42 Harv. J.L. & Pub. Pol’y 971 (2019) ............................................................. 44
Office of LGBT Affairs; Our Office’s Favorite Moments of 2018 (2018) .......................... 7

xiv PCHR Regulation 2.3 ................................................ 10
Philadelphia Home Rule Charter § 8-200 ................ 14
Peter Smith, Catholic Charities Battles to Serve Children and Adoptive Parents, National Catholic Register, March 15, 2018 ..................................................... 32
Francesca Steele, “Sisters of Saint Joseph,” 8 The Catholic Encyclopedia (1910) ...................................................................... 4
Julia Terruso, Philly Puts Out ‘Urgent’ Call—300 Families Needed for Fostering, Philadelphia Inquirer (Mar. 18, 2018) ..................................................... 12
U.S. Conference of Catholic Bishops, Discrimination Against Catholic Adoption Services (2018) ....................................... 9
U.S. Const. Amend. I ....................................... 3, 23, 42
Waiver/Exemption Committee, The City of Philadelphia (Apr. 2, 2019) .............................. 26
Emily Wax-Thibodeaux, ‘We are just destroying these kids’: The foster children growing up inside detention centers, Washington Post (Dec. 30, 2019) ..................................................................... 11
Andrew Yarrow, History of U.S. Children’s Policy 1900-Present, First Focus (2009)............................................................ 4

INTRODUCTION
The Archdiocese of Philadelphia has been caring for the orphaned, abused, and neglected children of Philadelphia for more than two centuries. It continues that work today through Catholic Social Services of the Archdiocese of Philadelphia, which provides loving homes for foster children. But in March 2018, despite an urgent need for foster families, Philadelphia suddenly stopped allowing foster children to be placed with Catholic Social Services (CSS). Philadelphia took this extraordinary action not in response to any legal violation, nor in response to any complaint it received, but because of CSS’s religious beliefs and practices regarding marriage, which City officials read about in the local paper.
City officials read that the Archdiocese follows Catholic Church teachings on marriage. That means, if ever asked, CSS could not provide a written endorsement of a same-sex relationship for a couple seeking to foster. When they read the news, City officials leapt into action: the City Council passed a resolution, the Mayor requested an inquiry, and two different City departments launched investigations. Then Philadelphia announced that going forward, no new foster children would be placed with CSS or with the families it serves, including longtime foster parents like petitioner Sharonell Fulton.
In its rush to penalize this religious exercise, the City failed to figure out whether CSS actually violated any law, much less a neutral, generally applicable one. Instead of a law, Philadelphia had a preferred outcome: the Archdiocese of Philadelphia should get with the times, accept that it is “not 100 years ago,” and start endorsing same-sex relationships for foster care.

2
Philadelphia’s actions violated the First Amendment under any standard. But that did not deter the Third Circuit from ruling in favor of the City. It held that Philadelphia’s actions were perfectly consistent with the Free Speech Clause, as well as the Free Exercise Clause under Employment Division v. Smith. The Third Circuit considered Philadelphia’s actions “neutral,” even though the City concocted six different post hoc justifications for penalizing CSS. And the court held Philadelphia’s actions “generally applicable,” even though the City grants discretionary exemptions from its policies and has never applied those policies across the board. This is a fundamental misreading of Smith.
Unfortunately, it is an unsurprising reading of Smith. From the beginning, Smith has bred confusion in lower courts and emboldened governments to restrict religious exercise with only the thinnest pretext of neutrality. In theory, Smith promised an administrable standard; in practice, it has been anything but. The courts’ experience with Smith does not support retaining it, and neither do the text, history, or tradition of the Free Exercise Clause. Smith should be revisited and replaced with a standard that better reflects the Constitutional text, history, and our long tradition of protecting diverse religious exercise.
Philadelphia has decided that the Archdiocese of Philadelphia can believe what it likes about marriage, so long as it speaks and acts to the contrary. Such a conflict was anticipated in Obergefell, was exacerbated by the Third Circuit’s view of Smith, has forced multiple religious foster agencies to close, and threatens CSS now. A properly functioning Free Exercise Clause forecloses that result.

3
OPINIONS BELOW
The Third Circuit’s opinion is reported at 922 F.3d 140 and reproduced at Pet.App.1a-51a. The district court’s opinion is reported at 320 F. Supp. 3d 661 and reproduced at Pet.App.52a-132a.
JURISDICTION
The court of appeals entered judgment on April 22, 2019. Petitioners timely filed a petition for writ of certiorari on July 22, 2019, which this Court granted on February 24, 2020. This Court has jurisdiction under 28 U.S.C. 1254(1).
CONSTITUTIONAL PROVISIONS INVOLVED
The First Amendment to the United States Constitution provides, in relevant part: “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech[.]” U.S. Const. Amend. I.
STATEMENT OF THE CASE
A. The Catholic Church has served Philadelphia children for more than two centuries.
Through Catholic Social Services, the Archdiocese of Philadelphia seeks to “continue[] the work of Jesus” by serving the people of Philadelphia. Pet.App.201a. Since 1797, the Catholic Church in Philadelphia has cared for children in need. Pet.App.12a, 252a-254a. As an arm of the Catholic Church, CSS performs what the Church calls corporal works of mercy. Catechism of the Catholic Church § 2447. Those include caring for “orphans and widows,” James 1:27, and the “least of

4
these.” Gospel of St. Matthew 25:40; Pet.App.12a. Today, CSS continues that work by providing foster homes for abused and neglected children. J.A.41.
The Catholic Church was doing this work long before the City of Philadelphia began overseeing foster care. After the yellow fever epidemic hit Philadelphia in the 1790s, Catholics, Jews, and other religious groups established orphanages. J.A.163-166. The first Catholic orphanage in Philadelphia, and one of the first in the United States, was founded in 1798. See Timothy A. Hacsi, Second Home: Orphan Asylums and Poor Families in America 18 (Harvard 1997). As the Catholic Church grew in Philadelphia, so did its ministry to orphaned and neglected children. In 1847, Bishop Kendrick invited the Sisters of St. Joseph to take over St. John’s Orphan Asylum. Francesca Steele, “Sisters of Saint Joseph,” 8 The Catholic Encyclopedia (1910), https://perma.cc/4WVW-2D7Q. By 1910, the order was caring for almost 26,000 children in the City. Ibid. This work extended to foster care, where the Catholic Children’s Bureau would find homes for children in need. J.A.166.
Over the course of the twentieth century, the government increased its involvement in (and regulation of) care for abused and neglected children. See Child Placement and Adoption, A Report of the Joint State Government Commission to the General Assembly of the Commonwealth of Pennsylvania at 1, 5-7 (1951), https://perma.cc/VMT7-D8MA (chronicling the growth of Pennsylvania’s involvement in child welfare); Andrew Yarrow, History of U.S. Children’s Policy 1900Present, First Focus (2009), https://perma.cc/3PC9WEM9 (highlighting state and federal developments throughout the twentieth century). Today, the City of

5
Philadelphia takes custody of children who are removed from their homes, most of whom will be placed with foster families. J.A.85-86, 352-353. The City relies upon private child-placing agencies (“private agencies”) to find them homes. J.A.694. CSS has had an annually renewed City contract to care for foster children for over 50 years. Pet.App.137a, J.A.504-505.
During that time, CSS has recruited, trained and supported thousands of foster parents, Pet.App.137a, including petitioner Sharonell Fulton, who fostered 40 children over 25 years; petitioner Toni Simms-Busch, a social worker who chose CSS when she was ready to foster; and plaintiff Cecelia Paul, a Philadelphia foster parent of the year who used her training as a pediatric nurse to foster infants born with drug addictions. J.A.38-55, J.A.59-70; C.A.App.0991-1001.
CSS is known for the support it provides to foster families, like delivering wrapped presents to Sharonell Fulton’s door when she took in new foster children on Christmas Eve. C.A.App.0992; Pet.App.137a. It relies on private funding to provide services above and beyond what the City’s contract requires. J.A.168-169, 172-173. CSS serves all children in need, regardless of religion, race, sex, or sexual orientation. Pet.App.158a.
Currently, CSS must contract with the City to do this work. J.A.82-83. As Philadelphia has argued, “absent its contract with the City, CSS has no preexisting right to determine the fate of Philadelphia’s abused and neglected children, whose care is entrusted by law to the government.” Phila.BIO 31. The Archdiocese may engage in other ministries, like sheltering homeless women, running group homes for youth with behavioral health issues, or providing community umbrella services. But for foster care, as CSS’s leadership

6
testified, CSS “would be breaking the law if [it] tried to provide foster-care services without a contract.” J.A.168.
B. Philadelphia relies on private agencies to provide foster homes.
Today, Philadelphia’s Department of Human Services (DHS) is charged by law with investigating allegations of abuse and neglect. 23 Pa. Stat. § 6362. When Philadelphia children must be removed from their homes, they are placed in DHS custody. J.A.684685; see also 23 Pa. Stat. § 6362. DHS must then find a suitable home for these children, and is required by law to place them in the most family-like setting possible. 11 Pa. Stat. § 2633.
DHS relies on private agencies that find, train, oversee, and support those families. J.A.685. When DHS needs a foster home for a child, it sends out a request, called a referral, to private agencies. These agencies check to see which foster families are available, then notify DHS of any potential match. Agencies provide information about the foster family, and DHS compares that with information about the foster child. DHS then determines which private agency has the most suitable foster family, based upon factors including race, age, family relationships, and disability. J.A. 266-267, J.A.307-310, J.A.79-81. After DHS makes that match, the child is placed with the foster family. The private agency will continue to oversee and support that family to ensure a successful foster placement. J.A.82.
Prospective foster parents must undergo a thorough evaluation and receive a written agency opinion assessing their home and family life. 55 Pa. Code

7
§ 3700.64. Prospective foster parents can approach any private agency for this “home study.” In 2018, Philadelphia contracted with thirty private agencies. Pet.App.13a. This array of agencies helps better serve Philadelphia’s diverse population. As Philadelphia says, “[e]ach agency has slightly different requirements, specialties, and training programs.” Pet.App.197a. 1 Philadelphia’s foster parent recruitment website lists agencies and tells families they should research different agencies to “find the best fit for you” so families can “feel confident and comfortable with the agency.” Ibid. Three foster care and adoption agencies in Philadelphia have the Human Rights Campaign’s (HRC) “Seal of Approval,” for their excellence in serving LGBTQ families. HRC, All Children— All Families: Participating Agencies (2020), https://perma.cc/QWA6-FG2M. Philadelphia also sponsors “recruitment and engagement efforts” for the LGBTQ community. J.A.267; Office of LGBT Affairs; Our Office’s Favorite Moments of 2018 (2018), https://perma.cc/B7JD-WEA9.
When private agencies conduct a home study, Pennsylvania law requires them to evaluate an applicant’s “existing family relationships,” “mental or emotional stability,” and “[a]bility * * * to work in partnership” with the foster agency. 55 Pa. Code § 3700.64. Home studies are deeply personal; they include an inhome visit, interviews on sensitive topics, and may include psychological evaluations of family members. Ibid. The private agency then makes the “decision to
1 All declarations and accompanying exhibits cited in this brief were offered into evidence and admitted at J.A.439-441.

8
approve, disapprove or provisionally approve the foster family.” 55 Pa. Code § 3700.69.
When an applicant reaches out to an agency, the agency might refer the applicant elsewhere for a variety of reasons. J.A.46-47, 176-177. For example, an applicant might live too far away, or the agency might have a waiting list. Pet.App.138a. Or an applicant might wish to foster Native American children or special needs children, who can only be placed by specially designated agencies. J.A.85-86, 115-117, 123-124, 176177. As a longtime social worker testified, referrals between agencies “are made all the time.” J.A.46-47; see also J.A.108, 115-116, 295-296.
Philadelphia acknowledges it “ha[s] nothing to do” with home studies. Pet.App.302a-303a; J.A.320-322. Foster family recruitment and certification are not contracted-for “Services” under the City’s contract. J.A.518-532 (list of “Services” does not include recruitment or certification). Nor are home studies “expressly funded under the [City] contract”; instead, “compensation is based on the number of children in [an agency’s] care.” Response in Opposition to Emergency Application at 26, Fulton v. City of Philadelphia, 139 S. Ct. 49 (2018) (No. 18A118) (Mem.). Philadelphia’s contract with CSS, like its contract with all private agencies, provides that CSS “is an independent contractor and shall not * * * be deemed * * * an employee or agent of the City,” nor shall CSS “in any way represent” otherwise. J.A.323, 634.
Home study certifications signify an agency’s approval of a family, and CSS understands the home studies as an endorsement of the relationships of those living in the home. 55 Pa. Code § 3700.69 (approval);

9
J.A.49-50. Accordingly, CSS cannot certify relationships during a home study that are inconsistent with its Catholic beliefs. J.A.171-172, 237-238. In practice, this means that CSS cannot provide foster care certifications for unmarried couples, regardless of sexual orientation, nor for same-sex married couples. J.A.171-172. This belief and practice has led to the exclusion of Catholic adoption and foster agencies in several cities. U.S. Conference of Catholic Bishops, Discrimination Against Catholic Adoption Services (2018), https://perma.cc/7AGW-7VPL.
If a same-sex couple were to ask for a home study, CSS would refer them to another nearby agency. J.A.178-179. But the record shows that no same-sex couple had ever approached CSS in this way. J.A.171172. Nor is there any evidence CSS’s religious beliefs prevented—or even discouraged—anyone from fostering. J.A.305; Pet.App.139a.
C. Philadelphia excludes CSS from foster care.
On March 13, 2018, the Philadelphia Inquirer published a story entitled “Two foster agencies in Philly won’t place kids with LGBTQ people.” Pet.App.185a190a. The story was about a complaint against a different agency, but contained a quote from the Archdiocese’s spokesperson. He confirmed CSS’s longstanding religious policy and also emphasized that CSS had not received inquiries from same-sex couples. Ibid.
On March 15, the City Council passed a resolution directing DHS to change its contracting practices and condemning “discrimination that occurs under the guise of religious freedom.” Pet.App.147a-148a. On

10
March 16, at the request of the Mayor, the Philadelphia Commission on Human Relations (PCHR) sent a letter to the Auxiliary Bishop who oversees CSS. Pet.App.149a-152a. PCHR lacked jurisdiction to investigate because no complaint had been filed against CSS. Pet.App.191a-193a; PCHR Regulation 2.3(a). Yet PCHR directed the Bishop to answer detailed questions and provide documentation of CSS’s policies, including whether “you have authority as a local affiliate/branch of the larger organiz[ation] to create or follow your own policies.” Pet.App.149a-152a.
The Mayor also spoke with the DHS Commissioner. Pet.App.191a-192a 304a, 306a-307a. The Mayor had previously publicly disparaged the Archdiocese by saying he “could care less about the people at the Archdiocese,” calling Archbishop Chaput’s actions “not Christian,” and exhorting Pope Francis “to kick some ass here!” Pet.App.173a, 177a-178a; J.A.372.2
The DHS Commissioner, Cynthia Figueroa, told the Mayor she was “working to address the issues.” J.A.368. Commissioner Figueroa investigated whether religious agencies certified same-sex couples. J.A.273, 364-366. Other than a single call to a friend, Figueroa did not investigate secular agencies. Ibid.
On March 16, after that investigation, Figueroa summoned CSS’s leadership to DHS headquarters.
2 After Archbishop Chaput retired and Archbishop Perez was installed, the mayor publicly called on him to change direction in this case: “I’m hopeful that this new bishop, who seems to be extremely sensitive and understanding, may have a different approach than the past one.” Joe Holden, Supreme Court To Hear Dispute Over Philadelphia Catholic Agency That Won’t Place Foster Children With Same-Sex Couples, CBS News (Feb. 24, 2020), https://perma.cc/3XRN-58D5.

11
She urged them to follow “the teachings of Pope Francis,” (as interpreted by the Commissioner) and told them that “times have changed,” “attitudes have changed,” and CSS should change its policy because it is “not 100 years ago.” J.A.182, 365-366. Minutes after this meeting, CSS learned that DHS had frozen referrals to CSS, meaning that no new children would be placed with any CSS foster parents. Pet.App.140a141a; J.A.183-184.
This freeze caused immediate disruption. It blocked children entering foster care from reuniting with siblings who were placed with CSS families, and it blocked children re-entering foster care from returning to CSS foster parents they knew and loved. Pet.App.141a-142a. When CSS worked with another agency to reunite two siblings, DHS emailed all private agencies informing them that there should be “NO referrals” to CSS. J.A.129-131, J.A.184-188. DHS even refused to reunite a young special needs boy with his former foster mother, who wanted to adopt him. J.A.497-503. DHS relented only after CSS sought emergency relief in court. J.A.250-252.3
Philadelphia took these actions despite a foster parent shortage. Shortages of foster families are a nationwide problem. Emily Wax-Thibodeaux, ‘We are just destroying these kids’: The foster children growing up inside detention centers, Washington Post (Dec. 30, 2019), https://perma.cc/NK29-3JB9. There are more
3 Afterwards, DHS leadership announced it would allow exceptions to the freeze based on “individualized assessments.” J.A.390-391; Pet.App.17a, 65a. DHS would later resume placements with the other agency mentioned in the article, which changed its policy under pressure from the City. J.A.690.

12
than 5,000 foster children in Philadelphia alone. Phila.BIO 4; J.A.85. Philadelphia faces a chronic shortage of foster homes, including homes for 250 children placed in institutions because there were no available foster families. So, DHS sent out an “urgent” plea for 300 new foster homes. Julia Terruso, Philly Puts Out ‘Urgent’ Call—300 Families Needed for Fostering, Philadelphia Inquirer (Mar. 18, 2018), https://perma.cc/C7UH-GGWZ. This “urgent” plea occurred two days after Philadelphia shut down foster placements with CSS.
Today, CSS has a dozen families ready to provide foster care, but Philadelphia’s policy leaves empty beds in their homes. CSS’s program is dwindling as children are adopted, age out of care, or return to their birth homes. Delays in family court have caused a dramatic slowdown in adoptions, leaving children in CSS’s foster homes longer than expected. See Pat Loeb, Backlog of 1,400 Adoption Cases Keeps Hopeful Philly Parents, Children Waiting, Radio.com (Feb. 19, 2019), https://perma.cc/U3ER-3BZW. But the program is still a fraction of its prior size, and with intake closed, CSS’s numbers will continue to drop until its program is forced to close.
D. Philadelphia’s six post hoc justifications.
Philadelphia has at various times asserted six different justifications for penalizing CSS.
1. The Fair Practices Ordinance.
Philadelphia first claimed CSS violated the Fair Practices Ordinance (FPO). Pet.App.149a-150a. The FPO (as incorporated into city contracts) prohibits “discriminat[ion] based on” characteristics including marital status, familial status, mental disability, and

13
sexual orientation in “public accommodation[s].” Pet.App.149a-150a; Phila. Code § 9-1106 (2016). But foster care has never been treated as a “public accommodation” in Philadelphia. J.A.150-151, 183-185, 305316. Instead, the City permits—indeed, expects—private agencies to assess the marital status, familial status, and mental disabilities of potential foster parents. See pp. 7-8, supra; 55 Pa. Code § 3700.64; J.A.98-100, 236-238. The FPO also applies to “the City, its departments, boards and commissions,” Phila. Code § 91102(1)(w), but Philadelphia does not apply the FPO to its own foster care operations. J.A.150-151. In fact, Philadelphia considers disability and race when making foster placements. J.A.305-316.
2. Provision 3.21.
Philadelphia next claimed CSS violated contract Provision 3.21. Pet.App.167a-169a. Provision 3.21 states that agencies “shall not reject a child or family for Services” unless “an exception is granted.” Pet.App.167a. Philadelphia argued that this provision prevented all referrals between agencies. Pet.App.167a-168a. This has been called the “mustcertify policy.” Pet.App.35a.
But during the evidentiary hearing, Philadelphia admitted that this provision applies only to “a rejection of a referral from DHS,”—not from families who apply independently. J.A.107 (emphasis added). Witnesses familiar with the City’s foster care system testified that referrals between agencies are commonplace. J.A.47 (“Referrals are made all the time.”); accord J.A.162-163,178. Specific examples included referrals for location, language, medical or behavioral

14
expertise, services for pregnant teens, and tribal affiliation. J.A.40-49, 86-87, 108-109, 114-120, 174-177, 295-297.
Provision 3.21 also permits “exception[s]” by “the Commissioner or the Commissioner’s designee, in his/her sole discretion.” Pet.App.58a-59a. But Philadelphia stated it has “no intention of granting an exception” to CSS. Pet.App.165a-172a.
3. New non-discrimination language.
Philadelphia also announced that it would create a new contract requirement to ensure that private agencies act “consistent with” Philadelphia’s “conception of equality.” Pet.App.169a. As the City explained, “any further contracts with CSS will be explicit” that CSS must certify same-sex couples. Pet.App.170a. The letter also compared CSS’s actions to racial discrimination. Pet.App.166a.
As threatened, Philadelphia changed its contracts after the preliminary injunction hearing. Its new policy is incorporated into Provision 3.21 of FY2019 contracts. It adds language prohibiting sexual orientation discrimination against prospective foster parents. It retains the language about granting exemptions.
4. The City Charter.
For the first time on appeal, Philadelphia relied upon a city charter provision requiring that city contracts contain nondiscrimination language. City C.A. Br. at 7-8. But that provision expressly excludes professional services contracts like CSS’s foster care contract. Philadelphia Home Rule Charter § 8-200(2); Pet.App.201a-203a (noting that the foster care contract is not subject to § 8-200). After CSS brought this

15
exclusion to Philadelphia’s attention, Philadelphia dropped the argument.
5. The “Waiver/Exemption Committee.”
When opposing certiorari, Philadelphia pointed to a new “Waiver/Exemption Committee” in which its lawyers will balance the “complex constitutional issues” that arise from “any request for a religious exemption.” Phila.BIO 15. Such requests would be “handled through the procedures that [the committee] establishes.” Ibid. At the same time, Philadelphia continued to assert that it would not extend any exemption to CSS. Phila.BIO 27.
6. An “updated and more detailed nondiscrimination provision.”
Also identified for the first time at the certiorari stage, Philadelphia amended its FY2020 contracts to include another “updated and more detailed nondiscrimination provision.” Phila.BIO 21.
E. The proceedings below.
CSS filed suit on May 17, 2018. After a three-day evidentiary hearing, the district court denied preliminary relief. Citing a lack of precedent, the district relied upon the “all comers” reasoning from Christian Legal Society v. Martinez, 561 U.S. 661 (2010), and held that Philadelphia had “a neutral law of general applicability under Smith.” Pet.App.81a, 85a.
Petitioners appealed and sought emergency relief from the Third Circuit, which was denied, and then from this Court. This Court denied emergency relief, but Justices Thomas, Alito, and Gorsuch noted their dissent. Fulton v. City of Philadelphia, 139 S. Ct. 49 (2018) (No. 18A118) (Mem.) (Aug. 30, 2018).

16
The Third Circuit affirmed the district court’s ruling on April 22, 2019. The key question, according to the panel, was whether Philadelphia “treat[ed] CSS worse than it would have treated another organization that did not work with same-sex couples as foster parents but had different religious beliefs[.]” Pet.App.32a. The court rejected CSS’s targeting arguments: the Commissioner’s admonition that CSS needed to follow the teachings of Pope Francis was merely “an effort to reach common ground.” Pet.App.33a. The Mayor’s comments were not “significant,” Pet.App.34a. The City Council’s resolution labeling CSS’s actions “discrimination that occurs under the guise of” religion fell within a “grey zone.” Pet.App.32a. DHS’s religiousagency-only investigation “made sense” because only religious agencies would object. Pet.App.33a. The FPO was “moot” because it fell under the old contract, and the various exceptions were minimized as “routine regulatory disagreement.” Pet.App.25a, 34a-35a.
The Third Circuit thus concluded that Philadelphia was enforcing a neutral and generally applicable policy under Smith. Pet.App.37a-38a. To hold otherwise, it warned, would make Smith “a dead letter,” and “the nation’s civil rights laws” as well. Pet.App.38a.
The court also rejected CSS’s free speech claim, holding that because Philadelphia funded aspects of CSS’s foster care program, “the [City’s] condition pertain[ed] to the program receiving government money.” Pet.App.42a. Petitioners sought certiorari, which this Court granted.

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SUMMARY OF ARGUMENT
Philadelphia demands that a religious agency, an arm of a church, speak and act according to Philadelphia’s beliefs. If it does not, Philadelphia will rid itself of the meddlesome agency. The Free Exercise Clause was made for cases like this one.
This Court has long restricted the government’s power to control church affairs, to license its religious activity, to penalize religious beliefs or status, or to prescribe what religious teachings are orthodox, on marriage, raising children, or any other topic. These bedrock principles should resolve this case.
Lower courts avoided this straightforward conclusion. They did so by applying Employment Division v. Smith and determining that Philadelphia was just enforcing a neutral, generally applicable law. But Philadelphia’s claim that it is applying a neutral, generally applicable law is missing the predicate: a law.
Philadelphia had no neutral law. Philadelphia decided on an outcome and then tried to find a law to fit. When it couldn’t, it reverse-engineered policies to justify its actions. This is the inverse of the neutral law in Smith. Philadelphia then compounded that error through express hostility toward CSS’s religious exercise.
Nor did Philadelphia have a generally applicable law. A law cannot be generally applicable when it uses individualized exemptions, and Philadelphia has granted the Commissioner and the City’s lawyers carte blanche to give exemptions. But no such exemption will be granted for CSS’s religious exercise. Philadelphia’s policies also fail the general applicability requirement because the City violates its own rules,

18
and allows other agencies to do so, too. Whatever Smith envisioned as a neutral and generally applicable law, it was not this.
Philadelphia’s actions also violate the First Amendment because the City is attempting to compel a private organization’s speech. Philadelphia conditions participation in the foster care system on making certain written certifications about marriage. If you don’t speak the government’s preferred message on marriage, you are excluded from providing foster care.
Despite all these constitutional violations, the Third Circuit still ruled against petitioners, and the engine behind that ruling was Smith. Since Smith, lower courts have fractured over how to apply its rule. Smith may have envisioned an administrable system in which legislatures make general laws and courts apply them. But instead, government actors often infringe religious exercise with non-neutral, non-general laws, and courts mistakenly apply Smith anyway. The result has been a less, rather than more, administrable standard.
Smith is unsupported by the text, history, and tradition of the Free Exercise Clause—all of which guarantee broad protection for religious beliefs and practices. Smith departed from longstanding precedent and is out of step with the treatment of other First Amendment guarantees.
This Court should revisit Smith. For years since Smith, governments large and small have learned to operate under RFRA, RLUIPA, and state laws much closer to Sherbert than to Smith. The sky has yet to fall. These standards confer crucial protection for reli-

19
gious exercise against government hostility, or indifference, from officials high or petty. The best approach is to revisit Smith and apply strict scrutiny to government actions infringing on religious exercise. If this Court does not wish to go that far, it should clarify that history must guide the application of the Free Exercise Clause, just as it does for the Establishment Clause. Either approach would mean ruling in favor of petitioners here.
ARGUMENT
I. Philadelphia violated the First Amendment.
A. Smith does not apply to all free exercise cases.
The First Amendment has historically protected churches’ ability to teach, speak, and act according to their beliefs. This Court has long recognized that there are some things government simply cannot do.
For example, the government may not impose disabilities on account of religious belief or status. Torcaso v. Watkins, 367 U.S. 488 (1961) (abolishing test oath); McDaniel v. Paty, 435 U.S. 618 (1978) (plurality op.) (invalidating exclusion of clergy from legislature). It cannot interfere with “an internal church decision that affects the faith and mission of the church itself.” Hosanna-Tabor Evangelical Lutheran Church & Sch. v. EEOC, 565 U.S. 171, 190 (2012). It has only limited ability to license religious activity. See, e.g., Cantwell v. Connecticut, 310 U.S. 296, 305 (1940) (invalidating licensing scheme for door-to-door solicitation); Niemotko v. Maryland, 340 U.S. 268, 269 (1951) (overturning convictions for preaching without a license in public park). Even when the government administers wholly discretionary funding programs, it must follow

20
free exercise constraints. See Thomas v. Review Bd., 450 U.S. 707 (1981); Trinity Lutheran Church of Columbia, Inc. v. Comer, 137 S. Ct. 2012, 2024 (2017).
This Court has also long protected religious freedom in the context of marriage and raising children. It has confirmed the rights of parents to raise their children in accord with their religious precepts. Wisconsin v. Yoder, 406 U.S. 205 (1972). It has emphasized the importance of allowing churches to maintain their own marriage solemnization practices. See Masterpiece Cakeshop, Ltd. v. Colorado Civil Rights Comm’n, 138 S. Ct. 1719, 1727 (2018) (giving refusal to solemnize a marriage as an example of protected religious exercise). And it has recognized the power of a Catholic religious order “with power to care for orphans” to challenge a law which prohibited the religious education they provided. Pierce v. Society of the Sisters of the Holy Names of Jesus & Mary, 268 U.S. 510, 531-532 (1925). More recently, three justices of this Court warned that that the right to marry conferred in Obergefell would lead to future cases such as “a religious adoption agency [that] declines to place children with same-sex married couples.” Obergefell v. Hodges, 135 S. Ct. 2584, 2626 (2015) (Roberts, C.J., dissenting).
In Smith, this Court restricted the areas to which some of the cases above, and their strict scrutiny analysis, applied. See Employment Div. v. Smith, 494 U.S. 872, 881-886 (1990). Smith’s rule, which “did not entitle the church members to a special dispensation from the general criminal laws on account of their religion,” does not purport to cover all free exercise claims. Trinity Lutheran, 137 S. Ct. at 2021. The decision was an outlier, contrary to prior precedent, and unsupported

21
by the text, history, and tradition of the First Amendment. See, e.g., Douglas Laycock, The Remnants of Free Exercise, 1990 Sup. Ct. Rev. 1 (1990).
Since it was decided, this Court has repeatedly declined to apply Smith. Just three years later, in Church of the Lukumi Babalu Aye, Inc. v. City of Hialeah, this Court invalidated a set of criminal laws which fell outside Smith’s rule because they were neither generally applicable nor neutral, 508 U.S. 520, 531-532 (1993). In free exercise cases since then, this Court has avoided Smith. In Locke v. Davey, it relied not on Smith, but on historical anti-establishment values. 540 U.S. 712 (2004). In Hosanna-Tabor, it distinguished Smith on the basis that Smith applied at most to “outward physical acts.” 565 U.S. at 190. In Trinity Lutheran, this Court held that Smith did not require a “special dispensation from the general criminal laws” while applying the McDaniel nondiscrimination standard. 137 S. Ct. at 2021. And in Masterpiece, this Court applied Lukumi, not Smith. 138 S. Ct. at 17311732. The one exception to this Court’s non-application of Smith was Christian Legal Society v. Martinez, which applied Smith in a footnote. 561 U.S. at 697 n.27.
At the same time, this Court has continued to apply the historical free exercise protections identified above. See Lukumi, 508 U.S. at 531-533 (collecting cases); Trinity Lutheran, 137 S. Ct. at 2019-2021 (same). It has also applied Smith’s own express exceptions. By its own terms, Smith is designed for “an across-the-board criminal prohibition on a particular form of conduct,” and expressly does not apply to laws (much less regulations or policies) which are not “neu-

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tral” because they are “directed at” a particular religious practice, nor to laws which are not “generally applicable,” particularly when they utilize “individualized exemptions.” 494 U.S. at 878-880, 884.
Every one of those exceptions is present here.
B. Smith never should have applied to this case.
Whatever Smith’s continuing vitality, it cannot apply to Philadelphia’s attempt to coerce the charitable arm of a Catholic Archdiocese to either violate Catholic teachings on marriage or close down a centuries-old ministry serving at-risk children. This case falls far outside of Smith as it has been interpreted and applied by this Court.
First, Philadelphia’s actions here fall outside Smith’s scope because this case implicates the longstanding free exercise interests discussed above. Philadelphia has imposed special disabilities on CSS because of its religious beliefs (Torcaso, McDaniel). It is attempting to interfere with the internal decisionmaking of a church by instructing it how to interpret Catholic doctrine (Hosanna-Tabor). It is exploiting its authority to license religious activity (Cantwell, Niemotko). It is using its contracting and funding authority to exclude a disfavored religious actor. (Thomas, Trinity Lutheran). It is penalizing a church for its religious practices regarding marriage (Masterpiece). It is restricting a religious organization’s ability to serve children (Pierce). It is interfering with religious decisions about marriage and child-rearing without compelling reason (Yoder). This Court has long recognized

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that the Free Exercise Clause protects religious organizations in just such circumstances, and it should protect CSS here.
Second, Philadelphia’s actions fall squarely into the express exceptions described in the Smith opinion. Philadelphia did not act in a neutral manner, and its policies, rather than being generally applicable, are riddled with exemptions.
1. Philadelphia’s actions here “prohibit[]” CSS’s religious exercise. U.S. Const. Amend. I. Smith is limited to laws “not specifically directed at [plaintiffs’] religious practice,” where the religious prohibition “is not the object of the [law] but merely the incidental effect of a generally applicable and otherwise valid provision.” 494 U.S. at 878. Here, the effect on CSS’s religious exercise was not “incidental”; it was Philadelphia’s object. Such prohibitions must face strict scrutiny under the Free Exercise Clause, and this Court should make clear that such laws fall outside Smith’s rule.
The Third Circuit held otherwise because it thought CSS would only be protected if Philadelphia acted “disingenuously” or “as a pretext for persecut[ion].” Pet.App.34a. But Smith did not focus only on pretext or persecution—it distinguished all laws “specifically directed at” a religious exercise. 494 U.S. at 878. This includes laws that might be valid in other applications: in Lukumi, several of the invalidated ordinances merely incorporated pre-existing state law. 508 U.S. at 526. And in Masterpiece, the petitioner conceded that the law could be constitutionally applied in other circumstances. 138 S. Ct. at 1728. The ques-

24
tion is not whether a policy could be legitimately applied in some applications, but whether the prohibition of a religious practice is “the object of” the law.
Following Smith and Lukumi, courts of appeals applied strict scrutiny to policies which were “prompted” by a particular religious practice, Central Rabbinical Cong. v. New York City Dep’t of Health & Mental Hygiene, 763 F.3d 183, 195 (2d Cir. 2014), or where “[a]mple evidence support[ed] the theory that no such policy existed” until officials sought to penalize a religious claimant. Ward v. Polite, 667 F.3d 727, 739 (2012) (Sutton, J.). These courts had the analysis right, and this Court should confirm that a policy “directed at [plaintiff’s] religious practice” falls outside Smith.
Philadelphia easily flunks that test here. At every turn, the City’s policies have openly and obviously aimed at CSS’s religious exercise. See pp. 12-15, supra. The City has repeatedly shifted policies and admits that it changed the rules in response to CSS: “[A]ny further contracts with CSS will be explicit in this regard.” Pet.App.170a. That is more than enough to demonstrate the City’s actions are not a neutral law of the type covered by Smith.
Philadelphia’s actions are not neutral for a second reason: its express hostility toward CSS’s religious beliefs. The City Council labeled CSS’s actions “discrimination” taking place “under the guise of religious freedom.” Pet.App.147a. The PCHR opened an extra jurisdictional investigation at the request of the Mayor, who has a history of publicly disparaging the Archdiocese. DHS’s Commissioner told CSS that it was “not 100 years ago” and CSS should follow “the teachings of Pope Francis,” as opposed to the Archbishop.

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Pet.App.305a-306a. And when CSS refused to do so, she froze CSS’s foster care placements.
Such hostility demonstrates non-neutrality: “Relevant evidence includes, among other things, the historical background of the decision under challenge, the specific series of events leading to the enactment or official policy in question, and the legislative or administrative history, including contemporaneous statements made by members of the decisionmaking body.” Lukumi, 508 U.S. at 540 (opinion of Kennedy, J.) (citing Arlington Heights v. Metropolitan Housing Dev. Corp., 429 U.S. 252, 267-268 (1977)); Masterpiece, 138 S. Ct. at 1731 (adopting this standard). Like Phillips in Masterpiece, CSS did not receive “[t]he neutral and respectful consideration to which [it] was entitled”; instead, City decisionmakers evinced “clear and impermissible hostility toward the sincere religious beliefs that motivated [its] objection.” Masterpiece, 138 S. Ct. at 1729.
2. Smith is also inapplicable, and Philadelphia must also face strict scrutiny, because the City did not apply any generally applicable law.
First, Philadelphia’s policies cannot be generally applicable because they are subject to individualized exemptions. Smith does not apply “where the State has in place a system of individual exemptions.” Smith, 494 U.S. at 884. In such cases, the government may not refuse religious exemptions without a compelling reason. Ibid.; see also Blackhawk v. Pennsylvania, 381 F.3d 202, 209 (3d Cir. 2004) (Alito, J.) (“[A] law must satisfy strict scrutiny if it permits individualized, discretionary exemptions because such a regime creates the opportunity for a facially neutral and generally applicable standard to be applied in practice in

26
a way that discriminates against religiously motivated conduct.”). Yet the Third Circuit declined to consider the individualized exemptions at all.
Philadelphia uses two individualized exemption systems. Philadelphia has created a “Waiver/Exemption Committee,” which may grant “waivers of, or exemptions from, statutory requirements, contractual terms, or City policies and practices.” See Waiver/Exemption Committee, The City of Philadelphia (Apr. 2, 2019), https://perma.cc/ZM5P-WTEJ. Those exemptions may be granted for “constitutional issues, such as equal protection, due process, religious liberty, or other First Amendment concerns.” Ibid. Philadelphia is asserting the power to decide for itself when First Amendment waivers are required, subject to nothing more than rational basis review by this Court (or any court). This is not the situation envisioned by Smith, which addressed certain “across-the-board” laws. 494 U.S. at 884.
Philadelphia’s foster care contracts also permit exemptions “by the Commissioner or the Commissioner’s designee, in his/her sole discretion.” J.A.582. That contractual exemption allows providers to reject a referral of a family based upon their “social condition,” “environmental * * * condition,” the “condition of [their] residence,” or “for any other reason,” if an exception is granted. Ibid. No other limits are placed upon this discretion, and no guidelines cabin it.
Smith, Sherbert, and Lukumi teach that where the government undertakes detailed, discretionary analysis of individualized exemptions, it has stepped outside of Smith because it is no longer pursuing a generally applicable law. In Sherbert v. Verner, the unemployment commission was asked to determine whether

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a claimant “fail[ed], without good cause, to accept ‘suitable work.’” 374 U.S. 398, 401 (1963). Smith said this “‘good cause’ standard created a mechanism for individualized exemptions,” meriting strict scrutiny. 494 U.S. at 884. Likewise, in Lukumi, Hialeah’s interpretation of one of its animal slaughter ordinances “require[d] an evaluation of the particular justification for the killing,” and therefore constituted “a system of ‘individualized governmental assessment of the reasons for the relevant conduct.’” 508 U.S. at 537 (citation omitted). Where the government uses such a system, it “may not refuse to extend that system to cases of ‘religious hardship’ without compelling reason.” Ibid.
The Sherbert exemption required “good cause,” and the Lukumi exemption required an evaluation of the justification for the action. Philadelphia’s system likewise empowers government officials to grant waivers where they see fit, in their “sole discretion.” And here, Philadelphia has explicitly stated “the Commissioner has no intention of granting an exception” to CSS. Pet.App.168a. Philadelphia’s decision to deny any exemption to CSS must face strict scrutiny. This Court should clarify that decisions made in such a system are outside Smith’s rule.
Second, Philadelphia’s policies permit various exceptions which undermine its interests. This means they cannot be generally applicable. See Lukumi, 508 U.S. at 542. As discussed at length above, Philadelphia does not have a law; it has an open-ended series of post hoc justifications. Every time CSS pointed out that Philadelphia’s policies were not generally applicable (or not applicable at all), Philadelphia simply invented

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a new one. This is nothing like the “across-the-board criminal prohibition” in Smith. It is whack-a-mole.
Philadelphia claims that foster agencies must not discriminate according to familial status, marital status, or disability. See Pet.App.169a (citing FPO); J.A.654 (contract). Yet Philadelphia itself requires private agencies to consider marital status, familial status, and disability, and they may decline to certify a foster family on that basis. See pp. 7-8, supra. Philadelphia claimed that agencies may not refer families elsewhere, but evidence showed that agencies make referrals “all the time.” J.A.46-47. They may do so for reasons related to a child’s disability or a parent’s race, such as for Native American children and parents. See p. 8, supra. Philadelphia thus permits private agencies to violate its alleged policies for secular reasons, but declines to permit CSS to refer applicants elsewhere for a religious reason.
Nor does Philadelphia apply nondiscrimination policies to its own actions. Although prohibited by the same FPO Philadelphia claims applies to foster care, DHS considers disability and even race when making foster care placements. See pp. 6, 13, supra. Thus, Philadelphia’s policies “ha[ve] every appearance of a prohibition” that Philadelphia “is prepared to impose upon [CSS] but not upon itself.” Lukumi, 508 U.S. at 545.
Philadelphia candidly acknowledges that it “allow[s] agencies to holistically consider protected traits to secure the best interests of a particular child while matching them to a new family,” but distinguishes this from “categorically excluding members of a particular group.” Phila.BIO 24. That is not a law, nor even a

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written policy. It is Philadelphia’s explanation for its refusal to apply its written policies across the board.
The Third Circuit considered the policies generally applicable unless CSS could prove that Philadelphia “treat[ed] CSS worse than it would have treated another organization that did not work with same-sex couples as foster parents but had different religious beliefs.” Pet.App.32a. This narrow formulation is irreconcilable with Lukumi, which did not look myopically at exceptions for ritual slaughter, but considered exceptions permitting “hunting, slaughter of animals for food, eradication of insects and pests, and euthanasia,” and even the regulation of garbage dumpsters at restaurants, which posed health threats similar to Santería sacrifice. 508 U.S. at 537, 544-545. Following Lukumi, the majority of the circuits to consider the issue focused not upon the similarity of the permitted secular conduct, but on whether the permitted conduct undermined the purpose of the law.4 Here, Philadelphia’s many exceptions undermine the purpose of its policies. Potential foster parents may be referred elsewhere, and may even be excluded based upon subjective judgments about their marriage, family life, or mental disability. Or they may not receive a particular
4 See, e.g., Ward, 667 F.3d at 739 (policy not generally applicable where it “permit[ted] referrals for secular—indeed mundane— reasons,”); Midrash Sephardi, Inc. v. Town of Surfside, 366 F.3d 1214, 1235 (11th Cir. 2004) (zoning law prohibiting houses of worship not “general[ly] applicab[le] because private clubs and lodges endanger” Surfside’s interest “as much or more than churches and synagogues”); see also Douglas Laycock and Steven Collis, Generally Applicable Law & the Free Exercise of Religion, 95 Neb. L. Rev. 1 (2016) (discussing this line of cases).

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child because of the parent’s or child’s race or disability. Under Lukumi, these policies are not generally applicable. This Court should clarify that the position adopted by the majority of the lower courts is the correct one.
Philadelphia’s actions were not neutral, nor did it apply any generally applicable policy. Under Smith, such actions must face strict scrutiny. But Philadelphia’s actions must face strict scrutiny for an additional reason: Smith recognized that religious exercise cases which also implicate speech are especially deserving of more stringent review. 494 U.S. at 881-882. Philadelphia’s actions here also violate the Free Speech Clause.
C. Philadelphia’s actions unconstitutionally compel speech.
“[T]he First Amendment guarantees ‘freedom of speech,’” which includes “both what to say and what not to say.” Riley v. National Fed’n of the Blind of N.C., Inc., 487 U.S. 781, 783 (1988). Thus, the government may not compel a private party “to be an instrument for fostering public adherence to an ideological point of view.” Wooley v. Maynard, 430 U.S. 705, 715 (1977).
1. Philadelphia requires private agencies, as a condition of providing foster care, to author a written document evaluating and endorsing same-sex and unmarried cohabitating relationships. See p. 8, supra. There is no question that the endorsement is speech. It comes in the form of a home study written by CSS, which requires evaluations—both objective and subjective—of everything from the quality of the applicant’s intimate relationships to their suitability to raise children. See Janus v. AFSCME, 138 S. Ct. 2448, 2460 (2018)

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(agency fee violated “fundamental free speech rights”); see pp. 8-9 supra (describing written home studies). By dictating the content of endorsements written by CSS, Philadelphia seeks to “declar[e] the sponsors’ speech itself to be the public accommodation.” Hurley v. IrishAmerican Gay, Lesbian & Bisexual Grp., 515 U.S. 557, 573 (1995).
This is private speech: Commissioner Figueroa testified that the City has “nothing to do with” home studies—nor does it control their content. Compare p. 8, supra with NIFLA v. Becerra, 138 S. Ct. 2361, 2370 (2018) (displaying “government-drafted notice” is compelled private speech). Yet it claims the power to exclude CSS from the city’s foster care system if it declines to speak Philadelphia’s preferred message on marriage.
As this Court has confirmed on multiple occasions, governments do not have “unfettered power to reduce a group’s First Amendment rights by simply imposing a licensing requirement.” NIFLA, 138 S. Ct. at 2375. Manipulating regulatory authority to stifle disfavored speech “pose[s] the inherent risk that the Government seeks not to advance a legitimate regulatory goal, but to suppress unpopular ideas or information.” Id. at 2374 (quoting Turner Broad. Sys., Inc. v. FCC, 512 U.S. 622, 641 (1994)).
The City seeks to use its monopoly power to force CSS to either engage in private speech which violates its sincere religious beliefs or end its religious exercise. See pp. 9-12, supra. It does so for the express purpose of sending a message: Philadelphia argues that if it accommodates CSS, the “LGBTQ youth population would receive the message that while ‘[we] support you now, we won’t support your rights as an adult.’”

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Phila.BIO 6 (quoting Figueroa). In other words, Philadelphia says it must exclude CSS in order to send the message that Philadelphia believes CSS’s religious beliefs are insufficiently forward-thinking.
Philadelphia’s censorship is even more concerning given the topic on which it seeks forced conformity: marriage and the family. Obergefell held that religious organizations may continue “to advocate with utmost, sincere conviction that, by divine precepts, same-sex marriage should not be condoned.” Obergefell, 135 S. Ct. at 2607. And it confirmed “[t]he First Amendment ensures that religious organizations and persons are given proper protection” when they teach and speak on this topic. Ibid. That rule was broken here.
Philadelphia’s censorship is not unique. Nationwide, religious foster care and adoption agencies are facing the impossible choice of giving up an important religious ministry or betraying their sincere religious beliefs. See Peter Smith, Catholic Charities Battles to Serve Children and Adoptive Parents, National Catholic Register, March 15, 2018, https://perma.cc/7FTUZBP7 (describing disputes across the country). The Constitution does not permit governments to put religious ministries to such a choice absent compelling reason.
Philadelphia’s actions—compelling CSS’s private speech on pain of the loss of its foster care ministry— are thus subject to “the most exacting scrutiny.” Turner, 512 U.S. at 642; see also NIFLA, 138 S. Ct. at 2371.
2. Government is also prohibited from “deny[ing] a benefit to a person on a basis that infringes his constitutionally protected * * * freedom of speech even if he

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has no entitlement to that benefit.” Agency for Int’l Dev. v. AOSI, 570 U.S. 205, 214 (2013) (internal quotation marks and citations omitted).
“[T]he relevant distinction” is “between conditions that define the limits of the government spending program—those that specify the activities [the government] wants to subsidize—and conditions that seek to leverage funding to regulate speech outside the contours of the program itself.” AOSI, 570 U.S. at 214215. Philadelphia is attempting to leverage a program it pays for to compel speech it does not pay for.
Philadelphia does not fund home studies. J.A.168. It only pays a per diem for children placed with certified families—regardless of the number of home studies an agency performs. Philadelphia seeks to compel speech that occurs before it pays a dime, and speech that might not ever lead to a future payment, as Philadelphia makes its own, additional determination on whether it will place children with a particular family. See p. 6, supra; see also Phila. Code § 21-1801 (requiring independent determination by City).
In sum, Philadelphia attempted to coerce a church to speak an unfunded message it opposes in exchange for participating in a ministry it has performed for two centuries. The First Amendment prohibits such coercion.
D. Philadelphia’s actions fail strict scrutiny.
Philadelphia cannot possibly meet the burden of proving it satisfies strict scrutiny.
1. Philadelphia’s interests are not compelling. Where the lack of neutrality is particularly severe, as it is here, that fact alone is fatal. In Masterpiece, this

34
Court did not engage in strict scrutiny analysis, determining that “[t]he official expressions of hostility to religion * * * were inconsistent with what the Free Exercise Clause requires.” Masterpiece, 138 S. Ct. at 1732. Similarly, in Trinity Lutheran, this Court addressed strict scrutiny only briefly, holding that “[i]n the face of the clear infringement on free exercise before us, that interest cannot qualify as compelling.” 137 S. Ct. at 2024. Philadelphia’s hostility towards CSS’s religious exercise proves its interests cannot be compelling.
In its briefing, Philadelphia claims a “compelling, legitimate interest in prohibiting discrimination in its foster-care services program.” Phila.BIO 27. But it previously admitted that this interest is “no stronger or no weaker than enforcing any other policy.” J.A.148. This concession belies any claim to an interest “of the highest order.” Lukumi, 508 U.S. at 547 (citation and internal quotation marks omitted). Further, “a law cannot be regarded as protecting an interest ‘of the highest order’ * * * when it leaves appreciable damage to that supposedly vital interest unprohibited.” Ibid. (citation omitted). Philadelphia’s interest cannot be compelling because, as described above, its rules are honeycombed with exemptions.
The Third Circuit claimed “[i]t is black-letter law that ‘eradicating discrimination’ is a compelling interest.” Pet.App.47a (citing Roberts v. U.S. Jaycees, 468 U.S. 609, 623 (1984)). But strict scrutiny requires more than just asserting a non-discrimination interest. See, e.g., Boy Scouts of Am. v. Dale, 530 U.S. 640, 659 (2000) (“[S]tate interests embodied in New Jersey’s public accommodations law do not justify such a severe intrusion on the Boy Scouts’ rights to freedom

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of expressive association.”). And as this Court recognized in Obergefell, the “First Amendment ensures that religious organizations and persons are given proper protection as they seek to teach the principles that are so fulfilling and so central to their lives and faiths.” Obergefell, 135 S. Ct. at 2607. This Court later acknowledged that the inability to solemnize a samesex wedding is “well understood in our constitutional order as an exercise of religion, an exercise that gay persons could recognize and accept without serious diminishment to their own dignity and worth.” Masterpiece, 138 S. Ct. at 1727. Particularly in this contested and sensitive context, government actors need to do more than merely assert a broad nondiscrimination interest if they wish to punish a church for its religious exercises concerning marriage.
Philadelphia fares no better by claiming that it is coercing CSS to make foster care endorsements as a way of sending a message to others. Phila.BIO 6. The government does not have a compelling interest in coercing a private, religious organization to send a particular message. See, e.g., Hurley, 515 U.S. at 579 (government “is not free to interfere with speech for no better reason than promoting an approved message or discouraging a disfavored one, however enlightened either purpose may strike the government). As the dissent warned in Obergefell, “[t]hese apparent assaults on the character of fairminded people will have an effect, in society and in court,” and it would be a mistake “to portray everyone who does not share the majority’s ‘better informed understanding’ as bigoted.” 135 S. Ct. at 2626 (Roberts, C.J., dissenting). Philadelphia’s interest in sending a particular message is not enough to override First Amendment rights.

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2. Nor do Philadelphia’s means further its ends. Even if it had a compelling interest in applying its nondiscrimination policy to CSS, Philadelphia did not just penalize CSS—it prohibited children from being placed in homes that had already been certified by CSS long before the controversy arose. Worse still, Philadelphia is undermining its interest in finding loving homes for foster children. Philadelphia chose to avoid placing more children with mothers like Sharonell Fulton, Cecelia Paul, and Toni Simms-Busch. It did so at a time when it acknowledged that it has 250 foster children who needed to move out of institutions and into loving family homes. A dozen CSS homes still await foster children.
3. Philadelphia did not use the least restrictive means available to further its interests. “[I]f a less restrictive means is available for the Government to achieve its goals, the Government must use it.” Holt v. Hobbs, 574 U.S. 352, 365 (2015) (quoting United States v. Playboy Entm’t Grp., Inc., 529 U.S. 803, 815 (2000)). CSS has a policy to refer same-sex couples to one of the 29 other agencies who can complete their home studies—including three who have received HRC’s “Seal of Approval,” for their excellence in serving LGBTQ families. Philadelphia has not attempted to prove that referring LGBTQ couples to such agencies would be ineffective. Multiple states and jurisdictions work with religious agencies while also protecting the rights of LGBTQ couples. At least ten states have explicitly adopted laws to protect religious child welfare agencies. See States Amicus Br. 3-7; see also Holt, 574 U.S. at 369 (“when so many” other jurisdictions “offer an accommodation, [respondent] must, at a minimum, offer persuasive reasons why it believes that it must

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take a different course.”). The least restrictive alternative cannot be complete exclusion of religious agencies and the families they serve.
II. Smith should be replaced with a standard that reflects the text, history, and tradition of the Free Exercise Clause.
This case never should have been decided under Smith. Yet the Third Circuit applied Smith and opined that Smith would be a “dead letter” if CSS prevailed. This Court can resolve this case by clarifying the limits of Smith, but the more straightforward way to clarify the law is to replace Smith with a free exercise standard that reflects the text, history, and tradition of the clause.
Smith’s predictions about the future of free exercise claims have proven incorrect. “[T]he quality of [Smith’s] reasoning; its consistency with related decisions; legal developments since the decision; and [lack of] reliance on” it confirm that Smith should be revisited and replaced. See Franchise Tax Bd. of Cal. v. Hyatt, 139 S. Ct. 1485, 1499 (2019) (slip op. 17). Stare decisis—which “applies with perhaps least force of all to decisions that wrongly denied First Amendment rights,” Janus v. AFSCME, 138 S. Ct. 2448 (2018)— doesn’t require this Court to maintain Smith.
A. Smith’s predictions all proved wrong.
Smith relied not on the text, history, or tradition of the Free Exercise Clause, but on several predictions about the outcome of its rule. Namely, Smith predicted that granting religious exemptions would be “courting anarchy,” 494 U.S. at 888; that most free exercise claims would involve “laws” rather than administra-

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tive rules or policies, see id. at 890; and that legislatures would be sufficiently “solicitous” of religious exemption requests, ibid. But in the ensuing years, these justifications have rung hollow. This case is Exhibit A.
First, subsequent history debunks Smith’s “courting anarchy” prediction. RFRA has now applied to federal law for twenty-seven years, and the Religious Land Use and Institutionalized Persons Act (RLUIPA) has been in place for twenty years. Contrary to Smith’s warnings, these statues prove that the judiciary is “up to the task” of determining when laws should trump free exercise rights. Gonzales v. O Centro Espirita Beneficente Uniao do Vegetal, 546 U.S. 418, 436 (2006).
Decades of experience show that, rather than opening the floodgates, claims under RFRA and RLUIPA have proven to be a small portion of the federal caseload, and only infrequently troubled this Court. See Luke W. Goodrich & Rachel N. Busick, Sex, Drugs, and Eagle Feathers: An Empirical Study of Federal Religious Freedom Cases, 48 Seton Hall L. Rev. 353 (2018); Douglas Laycock & Luke W. Goodrich, RLUIPA: Necessary, Modest, and Under-Enforced, 39 Fordham Urb. L.J. 1021 (2012). Outside the long-running dispute over the contraceptive mandate, decisions applying those laws have been unanimous. See O Centro (8-0); Holt (9-0).
This is to say nothing of state-level guarantees. More than half the states have either adopted statelevel RFRAs or applied a similar standard under their state constitutions. See Christopher C. Lund, Religious Liberty After Gonzales: A Look at State RFRAs, 55 S.D. L. Rev. 466 (2010). These laws have applied for years, with no evidence of a descent into anarchy. See ibid.

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RFRA, RLUIPA, and similar state standards—not Smith—have proven to be the more administrable rule. Courts have proven adept at resolving RFRA and RLUIPA claims. See, e.g., Cutter v. Wilkinson, 544 U.S. 709, 722-723 (2005) (“no cause to believe” that the compelling-interest test could “not be applied in an appropriately balanced way”). By contrast, Smith led to a deep split over the meaning of neutrality and general applicability. Smith has not only created a circuit split over these terms, it has also had the counterintuitive effect of emphasizing the subjective motivations and legislative history behind government actions. See Lukumi, 508 U.S. at 558 (criticizing portion of opinion which “departs from the opinion’s general focus on the object of the laws at issue to consider the subjective motivation of the lawmakers”) (Scalia, J., concurring) (emphasis in original). Such history can at times be dispositive, as in Masterpiece. But Smith has incentivized free exercise claimants to peek behind the curtain of every governmental action. This cannot be what the Smith majority imagined.
RFRA, RLUIPA, and similar state laws have provided a clear test where Smith has failed. They also provide greater protection for religious exercise—that is their purpose. See, e.g., 42 U.S.C. 2000bb(b) (purpose statement). Although these standards are widespread, they are not universal. Important religious exercise interests arise in areas that are not covered by such laws. See, e.g., Douglas Laycock, The Broader Implications of Masterpiece Cakeshop, 2019 BYU L. Rev. 167, 203 (2019) (recounting cases). Or they may arise in states where, as in this case, the applicable state law has been narrowed to the point it does not apply. The result is that even with these protective statutes,

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important religious freedom cases fall through the cracks, where religious claimants may be punished for following their consciences. And Smith freely allows it.
Second, Smith presumed that future religious liberty claims would be against “laws”—a word it uses more than 20 times. See, e.g., 494 U.S. at 888-890. That word is no accident; Smith “expected” a society “solicitous” of religion, where religious believers could make their cases in the give-and-take of democratic lawmaking. Id. at 890. But subsequent history shows that growing regulatory power—not democratic lawmaking—is the source of most religious liberty disputes today. Today, “the danger posed by the growing power of the administrative state cannot be dismissed.” City of Arlington v. FCC, 569 U.S. 290, 315 (2013) (Roberts, C.J., dissenting).
Yet nothing in Smith contemplates government by regulation. See Laycock, The Remnants of Free Exercise, 1990 Sup. Ct. Rev. at 56 (“if churches are neutrally subjected to the full range of modern regulation, it is hard to see how they can sustain any distinctive social structure or witness”). Even one of Smith’s foremost academic proponents urges limiting its application in cases involving administrative actions. See Phillip P. Hamburger, Exclusion and Equality: How Exclusion from the Political Process Renders Religious Liberty Unequal, 90 Notre Dame L. Rev. 1919, 19381940 (2015); see also City of Boerne v. Flores, 521 U.S. 507, 538, 540 (1997) (Scalia, J., concurring) (citing Hamburger’s scholarship on Smith).
Third, and relatedly, Smith’s prediction of democratic “solicitude” toward religion has not been borne out in experience. Restrictions on religious freedom

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have been imposed by unsolicitous and unelected administrative officials. See, e.g., Trinity Lutheran, 137 S. Ct. at 2017 (agency funding rule); Holt, 574 U.S. at 358 (department grooming policy); Burwell v. Hobby Lobby Stores, Inc., 573 U.S. 682, 696-697 (2014) (agency-crafted mandate); Stormans, Inc. v. Wiesman, 136 S. Ct. 2433, 2434 (2016) (Alito, J., dissenting from denial) (state pharmacy board rules). Legislative accommodations, such as those for religious foster and adoption providers, are controversial and decried by public officials. See, e.g., Buck v. Gordon, No. 1:19-CV286, 2019 WL 4686425, at *7 n.9 (W.D. Mich. Sept. 26, 2019) (attorney general candidate decried law exempting religious adoption agencies as a “victory for the hate-mongers” and reversed state’s position after taking office). Even some who helped pass RFRA now repudiate it. See Louise Melling, ACLU: Why we can no longer support the federal ‘religious freedom’ law, Wash. Post (June 25, 2015). This Court has since recognized that it is the history and “text of the First Amendment itself,” not the ebb and flow of politics, that “gives special solicitude to the rights of religious organizations.” Hosanna-Tabor, 565 U.S. at 189.
This case confirms that none of Smith’s predictions came true. Philadelphia claimed that accommodating longstanding religious beliefs would produce “mayhem,” despite the fact that no same-sex couple had even approached CSS. Phila.BIO 30. Nor is there a general law: CSS is being penalized even as Philadelphia’s bureaucrats struggle to fashion new policies to come up with a violation. There neither was nor could be political solicitude: the City Council rushed to condemn “discrimination” under the “guise” of religion,

42
and the Commissioner decided that CSS would be excluded unless its traditional religious views got with “the times.” The Third Circuit had it almost right. Smith should become a “dead letter” because none of its premises have held.
B. Smith is contrary to constitutional text and history.
Smith’s take on the text, history, and tradition of the Free Exercise Clause also proved incorrect.
1. Smith reads the text too narrowly. The Free Exercise Clause safeguards an affirmative right for believers to practice their religion, not just hold particular religious beliefs. U.S. Const. amend. I. And on its face, the phrase “prohibiting the free exercise thereof” “does not distinguish between laws that are generally applicable and laws that target particular religious practices.” Smith, 494 U.S. at 894 (O’Connor, J., concurring). If a law prohibits a religious practice (say, wearing a yarmulke in court), it does so regardless of whether it also prohibits all analogous secular activities (“no hats”). Indeed, just such a prohibition was what the Founders had in mind when crafting the Clause. See Michael W. McConnell, The Origins and Historical Understanding of Free Exercise of Religion, 103 Harv. L. Rev. 1409, 1471-1472 & n.320 (1990) (describing the infamous case of William Penn’s hat and its effects on the debate over the Bill of Rights).
Nor does the First Amendment—unlike other portions of the Bill of Rights—contain textual limitations. Other amendments include limitations such as “but in a manner prescribed by law” (Third), “unreasonable” (Fourth), “without just compensation” (Fifth), “than according to the rules of the common law” (Seventh),

43
or “excessive” (Eighth). But the First Amendment contains no such limitations, indicating a broad reservation of rights. That is why this Court applies the highest level of scrutiny to attempts to restrict those rights. “It is odd, given this text, to allow the limitations to swallow up so strongly worded a rule.” Michael W. McConnell, Free Exercise Revisionism and the Smith Decision, 57 U. Chi. L. Rev. 1109, 1116 (1990).
Founding-era sources confirm that the Free Exercise Clause was meant to be just as restrictive on government as the Establishment, Speech, Press, and Assembly Clauses. When John Marshall suggested that government power over the press might be greater than that over religious establishment, he was refuted by no less than James Madison, who said: “[T]he liberty of conscience and the freedom of the press were equally and completely exempted from all authority whatever of the United States.” McConnell, Origins, 103 Harv. L. Rev. at 1487-1488 (quoting James Madison, Report on the Virginia Resolutions (Jan. 18, 1800), reprinted in 5 The Founders Constitution 141, 146 (P. Kurland & R. Lerner eds. 1987)) (emphasis in original). Smith did not cite any contrary founding-era sources, yet its rule means that religious exercise receives lesser protection than other portions of the First Amendment.
Thus, “the most straightforward, plain-meaning interpretation of the text” is that it protects an affirmative freedom from government interference. Douglas Laycock, Religious Liberty as Liberty, 7 J. Contemp. Legal Issues 313, 337 (1996). Smith provides no textual support for its narrow reading, arguing only that it is a “permissible” reading. 494 U.S. at 878. But it is not the most natural one.

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2. What the text reflects, history confirms: the Free Exercise Clause embodied an affirmative freedom from government interference. Three data points confirm this reading.
First, “perhaps the best evidence of the original understanding of the” federal Free Exercise Clause is the language of the Clause’s state forerunners. Boerne, 521 U.S. at 553 (O’Connor, J., dissenting); cf. District of Columbia v. Heller, 554 U.S. 570, 600-603 (2008) (looking to “analogous arms-bearing rights in state constitutions”). By 1789, most state constitutions contained “a broad guarantee of free exercise or liberty of conscience, coupled with a caveat or proviso limiting the scope of the freedom when it conflicts with laws protecting the peace and safety, and sometimes other interests, of the state.” Michael W. McConnell, Freedom from Persecution or Protection of the Rights of Conscience?: A Critique of Justice Scalia’s Historical Arguments in City of Boerne v. Flores, 39 Wm. & Mary L. Rev. 819, 833 (1998); see also Branton J. Nestor, The Original Meaning and Significance of Early State Provisos to the Free Exercise of Religion, 42 Harv. J.L. & Pub. Pol’y 971, 976 n.20 (2019) (collecting provisions in Table II).
These provisions show that believers could generally exercise their religion unless it conflicted with especially important state interests. Boerne, 521 U.S. at 554–55 (O’Connor, J., dissenting). Justice Scalia disputed this proposition, pointing to state constitutions which prohibited “action taken ‘for,’ ‘in respect of,’ or ‘on account of’ one’s religion, or ‘discriminatory’ action.” Boerne, 521 U.S. at 539 (Scalia, J., concurring). But even that defense was limited, arguing that history “is more supportive * * * than destructive of”

45
Smith. Boerne, 521 U.S. at 544 (Scalia, J., concurring). A closer look at that language shows that these “for” or “respecting” clauses were followed by broader guarantees that were not limited to discriminatory laws. McConnell, Freedom from Persecution, 39 Wm. & Mary L. Rev. at 830. Thus, the best reading of state constitutions is that they contained broad protections of religious exercise.
The “peace and safety” provisos indicate that only particularly important state interests could override this broad protection. Justice Scalia argued that virtually any law would promote peace and safety. Boerne, 521 U.S. at 538 (Scalia, J., concurring) (citing Philip A. Hamburger, A Constitutional Right of Religious Exemption: An Historical Perspective, 60 Geo. Wash. Law Rev. 915, 918-919 (1992)). But this is inconsistent with the common-law understanding at the time. For example, Blackstone lists thirteen specific offenses as “offences against the public peace,” indicating that “the words are confined to public disorder and violent or tortious injury to other persons.” McConnell, Freedom from Persecution, 39 Wm. & Mary L. Rev. at 835-836; see also 4 William Blackstone, Commentaries *142153 (including a “riotous assembly of twelve or more,” an “affray,” or “going armed with dangerous or unusual weaponry”). These definitions support the notion that only a subset of particularly compelling laws could override free exercise rights.
Second, Smith runs counter to historical treatment of religious dissenters. At the time of the founding, Quakers and other minority groups objected to swearing oaths and bearing arms. Such laws were generally enacted to further interests like truthful testimony and raising an army, not to target religious dissenters.

46
Colonial and state governments nevertheless recognized that religious liberty required exemptions from these generally applicable laws. Boerne, 521 U.S. at 557-559 (O’Connor, J., dissenting); McConnell, Origins, 103 Harv. L. Rev. at 1466-1471.
Early state decisions also recognized exceptions to general laws. For example, in People v. Phillips, a New York court exempted a Catholic priest from a “general rule”: complying with a subpoena that would require him to break the seal of confession. Court of General Sessions, City of New York (June 14, 1813) (described in McConnell, Origins, 103 Harv. L. Rev. at 1504). While early precedents are not unanimous, these decisions demonstrate that exemptions from general laws were historically accepted. See McConnell, Origins, 103 Harv. L. Rev at 1503-1511 (discussing cases). More recent scholarship has also demonstrated that founding-era courts created exemptions from statutes to protect a host of individual rights, including religious ones, and courts would carefully assess whether applying the law to a specific context would actually advance the government’s interest. See Stephanie Barclay, The Historical Origins of Judicial Religious Exemptions, Notre Dame L. Rev. (forthcoming 2020) (manuscript at 67-72) (https://bit.ly/3b0btbv). The mode of analysis they engaged in resembled important aspects of modern strict scrutiny. Ibid. Simply put, restrictions on religious exercise were permitted only where the government was advancing a particularly important interest.
This understanding was confirmed in the 19th century by the Fourteenth Amendment’s framers. Kurt T. Lash, The Second Adoption of the Free Exercise Clause:

47
Religious Exemptions Under the Fourteenth Amendment, 88 Nw. U. L. Rev. 1106 (1994). For instance, (religion-) neutral and generally applicable laws across the South had the effect of prohibiting the religious exercise of enslaved persons. The Fourteenth Amendment’s framers “explicitly target[ed]” these laws “as examples of what would become unconstitutional” through incorporation. Id. at 1131-1137, 1149.
Finally, Smith is inconsistent with the theoretical foundations of religious liberty in founding-era thought. Madison argued that “the right of every man to exercise” his religion flowed from man’s “duty towards the Creator”—a duty that “is precedent, both in order of time and in degree of obligation, to the claims of Civil Society.” James Madison, Memorial and Remonstrance Against Religious Assessments (1785), National Archives, Library of Congress, Founders Online, https://perma.cc/T6AR-JKJC. Madison’s argument is incompatible with Smith: if “the scope of religious liberty is defined by religious duty,” then the focus must be on the religious duty, not the type of law that prohibits it. McConnell, Origins, 103 Harv. L. Rev. at 1453.
Thus, the historical evidence provides “powerful reason to interpret the [Free Exercise] Clause to accord with its natural reading, as applying to all laws prohibiting religious exercise in fact, not just those aimed at its prohibition.” Lukumi, 508 U.S. at 576 (Souter, J., concurring).
C. Smith is a law unto itself.
Smith is also contrary to more recent precedent. “[W]hatever Smith’s virtues, they do not include a comfortable fit” with precedent. Lukumi, 508 U.S. at

48
570-571 (Souter, J., concurring). Smith limited prior cases by claiming that they either involved previously unrecognized “hybrid situations,” or were unemployment compensation cases that merited strict scrutiny because of individualized government assessments. 494 U.S. at 879-883 (distinguishing Yoder, Pierce, Sherbert, and Thomas). Not even Smith’s defenders support these “fiction[s].” William P. Marshall, In Defense of Smith and Free Exercise Revisionism, 58 U. Chi. L. Rev. 308, 309 (1991); Richard W. Garnett, The Political (and Other) Safeguards of Religious Freedom, 32 Cardozo L. Rev. 1815, 1819 (2011) (Smith’s distinctions “make for some awkward moments”). The hybrid rights theory, in particular, has been criticized even by Smith’s proponents. See, e.g., Marshall, In Defense of Smith, 58 U. Chi. L. Rev. at 309 n.3 (“The Court’s claim that [Yoder] was decided on the basis of a ‘hybrid’ constitutional right * * * is particularly illustrative of poetic license.”). And lower courts have struggled to apply it. See, e.g., Combs v. Homer-Center Sch. Dist., 540 F.3d 231, 244 (3d Cir. 2008) (“Smith’s hybrid-rights theory has divided our sister circuits.”).
Smith claimed the free-exercise mainstream was “described succinctly” by Gobitis—a decision overruled by West Va. St. Bd. of Educ. v. Barnette, 319 U.S. 624 (1943), just three years after it was decided. See 494 U.S. at 878-879 (discussing Minersville Sch. Dist. Bd. of Educ. v. Gobitis, 310 U.S. 586 (1940)). The only good law Smith cited for its rule is Reynolds. See 494 U.S. at 879 (discussing Reynolds v. United States, 98 U.S. 145 (1878)). But Reynolds was premised on the notion that the Free Exercise Clause protects only beliefs, not conduct, an idea flatly inconsistent with the Clause’s text (“exercise”) and with cases such as Cantwell,

49
Lukumi and Yoder. See Reynolds, 98 U.S. at 164. And Reynolds, unlike later cases, was analyzed as a request for an automatic exemption, regardless of any countervailing government interests. See id. at 150; Sherbert, 374 U.S. at 403 (distinguishing Reynolds).
A unanimous Court would later acknowledge that Smith “largely repudiated the method of analysis used in prior free exercise cases.” Holt, 574 U.S. at 357. Ten Justices have joined opinions criticizing Smith, issued from the day it was decided to just last year. See Kennedy v. Bremerton Sch. Dist., 139 S. Ct. 634 (2019) (Alito, J., concurring) (Smith “drastically cut back on the protection provided by the Free Exercise Clause”); Boerne, 521 U.S. at 566 (Breyer, J., dissenting); Lukumi, 508 U.S. at 559, 571-577 (Souter, J., concurring); Smith, 494 U.S. at 907 (Blackmun, J., dissenting). Their criticisms should be considered here.
Smith’s treatment of the Free Exercise Clause is also out of step with other First Amendment guarantees, where as-applied exemptions are the norm. See, e.g., Stephanie Barclay & Mark Rienzi, Constitutional Anomalies or As-Applied Challenges? A Defense of Religious Exemptions, 59 B.C. L. Rev. 1595, 1643 (2018) (trend continuing after both O Centro and Hobby Lobby). Limited, as-applied relief is a “basic building block[] of constitutional adjudication.” Gonzales v. Carhart, 550 U.S. 124, 167-168 (2007). Long experience proves that such exemptions are a workable way to safeguard fundamental rights.

50
D. Smith should be revisited and replaced with a standard that is true to the text, history, and tradition of the Free Exercise Clause.
The text, history, and tradition of the First Amendment require broad protection for religious exercise, limited only by particularly important government interests. Longstanding precedent holds that, when the government seeks to restrict First Amendment rights, it must have a particularly important interest at stake. Modern experience with RFRA, RLUIPA, state RFRAs, and the Sherbert/Yoder line of cases demonstrates that this rule is workable, administrable, and familiar to governments and courts. Neither the quality of Smith’s reasoning, the workability of its rule, its consistency with other decisions, nor reliance interests support maintaining Smith. It should be replaced, and this Court should adopt the strict scrutiny test for laws which infringe upon religious exercise.
At a minimum, this Court should—as it has done with the Establishment Clause—look to purpose and history for guidance when interpreting the Free Exercise Clause. See American Legion v. American Humanist Ass’n, 139 S. Ct. 2067, 2087 (2019). This Court has recognized the importance of “retaining established, religiously expressive * * * practices,” noting that the “passage of time gives rise to a strong presumption of constitutionality.” Id. at 2085; see also id. at 20902091 (interpreting circumstances “in light of the basic purposes that the Religion Clauses were meant to serve”) (Breyer, J., concurring).
This Court has recognized that the Religion Clauses “radiate[] * * * a spirit of freedom for religious organizations, an independence from secular

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control or manipulation—in short, power to decide for themselves, free from state interference, matters of church government as well as those of faith and doctrine.” Hosanna-Tabor, 565 U.S. at 186 (quoting Kedroff v. Saint Nicholas Cathedral of Russian Orthodox Church, 344 U.S. 94, 116 (1952)). Leaving space for religious groups to live out their faith is central to the Religion Clauses’ ability to “foster a society in which people of all beliefs can live together.” American Legion, 139 S. Ct. at 2074.
Viewed through the lens of history, Philadelphia’s actions cannot be constitutional. The City has attempted to interfere with the decision-making of a church, telling a Catholic ministry how to interpret Catholic doctrine, and penalizing the agency when it followed the Archbishop instead of the DHS Commissioner. This Court’s precedents teach that government power is at its nadir when attempting to dictate the internal affairs of a church.
Philadelphia is also attempting to exclude CSS from its historical ministry of caring for foster children. This Court has recognized since Pierce that religious ministries engage in work “long regarded as useful and meritorious,” and may assert constitutional claims to protect such work. 268 U.S. at 534. Philadelphia is using its licensing authority to restrict a disfavored religious practice, an action condemned since Cantwell and Niemotko. Philadelphia is insisting that CSS behave in accordance with the government’s—not its own—beliefs about marriage and child-rearing, and attempting to use its licensing and funding authority to exclude a disfavored religious group from caring for Philadelphia foster children. But funding authority is not excluded from the Free Exercise

52
Clause. See Trinity Lutheran, 137 S. Ct. at 2021. No historical reading of the Free Exercise Clause allows the government to usurp a field long ago developed by religious institutions, and then demand that those institutions abandon either their beliefs or their ministry.
* * *
The Third Circuit misapplied the First Amendment. “The very purpose of a Bill of Rights was to withdraw certain subjects from the vicissitudes of political controversy, to place them beyond the reach of majorities and officials and to establish them as legal principles to be applied by the courts.” Barnette, 319 U.S. at 638. Yet because of Smith, the Third Circuit subjected petitioners’ religious exercise to the vicissitudes of Philadelphia politics. The decision below was wrong and should be reversed.
CONCLUSION
The decision below should be reversed.

NICHOLAS M. CENTRELLA CONRAD O’BRIEN PC 1500 Market Street Suite 3900 Philadelphia, PA 19102 (215) 864-8098

53
Respectfully submitted.
MARK. L. RIENZI Counsel of Record
LORI H. WINDHAM ERIC C. RASSBACH WILLIAM J. HAUN NICHOLAS R. REAVES JACOB M. COATE THE BECKET FUND FOR
RELIGIOUS LIBERTY 1200 New Hampshire
Ave., NW Washington, DC 20036 mrienzi@becketlaw.org (202) 955-0095

Counsel for Petitioners

MAY 2020

 
 No. 19-123

In the Supreme Court of the United States
__________
SHARONELL FULTON, et al., Petitioners,
v.

CITY OF PHILADELPHIA, et al.,

__________

Respondents.

ON PETITION FOR A WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT __________

REPLY BRIE_F__F_O__R__P__ETITIONERS

NICHOLAS M. CENTRELLA CONRAD O’BRIEN PC 1500 Market Street Suite 3900 Philadelphia, PA 19102 (215) 864-8098

MARK. L. RIENZI Counsel of Record
LORI H. WINDHAM NICHOLAS R. REAVES WILLIAM J. HAUN JACOB M. COATE THE BECKET FUND FOR
RELIGIOUS LIBERTY 1200 New Hampshire
Ave., NW Washington, DC 20036 mrienzi@becketlaw.org (202) 955-0095

Counsel for Petitioners

TABLE OF CONTENTS
Page
TABLE OF AUTHORITIES .......................................ii
INTRODUCTION ....................................................... 1
ARGUMENT............................................................... 2
I. The circuit split is deep and the result of Smith ................................................................ 2
A. The decision below deepens a 6-2 split ............................................................. 2
B. This case is an excellent vehicle to revisit Smith ............................................... 7
II. The Third Circuit’s opinion runs afoul of this Court’s unconstitutional conditions cases ................................................................. 8
III.This case presents an ideal vehicle for addressing the questions presented and resolving issues of national importance........ 10
CONCLUSION ......................................................... 12

ii
TABLE OF AUTHORITIES
Page(s)
CASES
Agency for Int’l Dev. v. AOSI, 570 U.S. 205 (2013) ................................................... 9, 10, 11
American Legion v. American Humanist Ass’n, 139 S. Ct. 2067 (2019) .......................................... 12
Board of Cty. Comm’rs v. Umbehr, 518 U.S. 668 (1996) ........................................... 9-10
Bowen v. Kendrick, 487 U.S. 589 (1988) ...................................... 1, 8, 10
Central Rabbinical Cong. v. New York City Dep’t of Health, 763 F.3d 183 (2014)................................................ 6
Department of Texas, Veterans of Foreign Wars v. Texas Lottery Comm’n, 760 F.3d 427 (2014)................................................ 8
Employment Div. v. Smith, 494 U.S. 872 (1990) ................................................ 1
Espinoza v. Montana Dep’t of Revenue, 435 P.3d 603 (Mont. 2018) ..................................... 9
Holt v. Hobbs, 135 S. Ct. 853 (2015) .............................................. 8
Masterpiece Cakeshop v. Colorado Civil Rights Comm’n, 138 S. Ct. 1719 (2018) ............................................ 7

iii
Obergefell v. Hodges, 135 S. Ct. 2584 (2015) ...................................... 1, 10
Stormans, Inc. v. Wiesman, 136 S. Ct. 2433 (2016) ............................................ 2
Stormans, Inc. v. Wiesman, 794 F.3d 1064 (9th Cir. 2015) ................................ 6
Trinity Lutheran Church of Columbia, Inc. v. Comer, 137 S. Ct. 2012 (2017) ...................................... 9, 10
OTHER AUTHORITIES
Douglas Laycock & Steven T. Collis, Generally Applicable Law and the Free Exercise of Religion, 95 Neb. L. Rev. 1 (2016) ......................................... 1
Douglas Laycock, The Remnants of Free Exercise, 1990 Sup. Ct. Rev. 1 (1990).................................... 7
Phila. City Charter § 2-309 ....................................... 11

INTRODUCTION
This petition involves both deep circuit splits and urgent issues of national importance. In opposition, Philadelphia offers pro forma arguments, claiming imaginary factual disputes and simply ignoring the precedents that make up the splits on both free exercise and free speech. Apparently unsure whether its previous four post-hoc justifications suffice, Philadelphia offers the Court two new alleged policies in its ongoing attempt to exclude CSS from foster care while avoiding judicial scrutiny.
Philadelphia’s evasive maneuvers cannot conceal the “deep and wide” split over what makes a law religiously neutral and generally applicable, as courts and legal scholars acknowledge. Douglas Laycock & Steven T. Collis, Generally Applicable Law and the Free Exercise of Religion, 95 Neb. L. Rev. 1, 11, 15 (2016) (Laycock). This split also underscores the need, as four Justices have recognized, to revisit its source: Employment Div. v. Smith, 494 U.S. 872 (1990). The key facts are undisputed. Philadelphia’s shifting rationales demonstrate that its actions are not neutral attempts at good governance, but ploys to penalize disfavored religious practices—and to hide behind Smith while doing it.
The Court has known for years that this issue would arise. See Obergefell v. Hodges, 135 S. Ct. 2584, 2626 (2015) (Roberts, C.J., dissenting). Without this Court’s intervention, the decision below will jeopardize the “long history of cooperation and interdependency between governments and charitable or religious organizations.” Bowen v. Kendrick, 487 U.S. 589, 609 (1988). Religious groups, governments, parents, and children hoping for a stable home need to know

2
whether the law protects their ability to serve those most in need.
ARGUMENT
I. The circuit split is deep and the result of Smith.
A. The decision below deepens a 6-2 split.
The petition sets forth a 6-2 split over the requirements to prove a Free Exercise violation. Pet.19-29. The Third Circuit, after reciting various Free Exercise cases, distilled them to a new standard: plaintiffs must prove that someone else was permitted to engage in identical conduct for non-religious reasons. Other circuits permit a variety of ways to prove a law was not neutral or generally applicable. Pet.19.
Respondents deny the split, but tellingly never explain (despite nearly 18,000 words of briefing), how the Third Circuit’s decision is consistent with the decisions of the Second (Central Rabbinical Congress), Sixth (Ward), Seventh (St. John’s), Eighth (CHILD), Tenth (Axson-Flynn, Shrum), or Eleventh (Midrash) Circuits. Instead, Respondents admit the Third Circuit’s decision “is also consistent with” Stormans, a case on the other side of the split, in which three Justices of an eight-Justice court would have granted certiorari. Phila. BIO 18-19; see also Stormans, Inc. v. Wiesman, 136 S. Ct. 2433 (2016) (Alito, J., dissenting from denial of certiorari).
Philadelphia’s lack of a neutral, generally applicable law is clear and would have been dispositive in six circuits. Philadelphia attempted to prohibit CSS’s religious exercise by hopping among the following policies: that (1) all agencies must assess all applicants,

3
(2) its fair practices ordinance (FPO) prohibits discrimination against protected classes, (3) it created a new non-discrimination provision for 2019 contracts, and (4) its City Charter required its actions. But (1) and (2) not only do not apply, they are riddled with exceptions; (3) was the result of religious targeting; and (4) by its terms never applied. Pet.11-15.
Now, in case those rationalizations are not enough, Philadelphia introduces two more: (5) a brand-new “Waiver/Exemption Committee” created during this appeal and made up of its lawyers and (6) “an updated and more detailed nondiscrimination provision” in 2020 contracts. Phila. BIO 15, 21. This is not application of a neutral law of general applicability. It is whack-a-mole.
Philadelphia also attempts to claim that the circuit split is really a factual disagreement. Not so. Philadelphia’s policies are riddled with exemptions, Philadelphia officials’ statements indicate religious targeting, and Philadelphia cycles through multiple policies. None of these facts are disputed: the exceptions are written into the contracts; the officials’ statements are admitted; and the policy shifts are embraced as a feature, not a bug. In other circuits, any one of these facts would merit strict scrutiny. Pet.22-28.
1. The Sixth, Tenth, and Eleventh Circuits would have applied strict scrutiny here. The Sixth and Tenth Circuits hold that policies allowing for individualized exemptions are, by definition, not generally applicable. Pet.23-25 (citing Ward and Axson-Flynn). No one disputes that Philadelphia uses a system of individualized exemptions: the exemptions are in the contract. Pet.App.167a. Philadelphia asserts that all agencies

4
must assess all applicants, Phila. BIO 1, but the underlying contract provision only applies “unless an exception is granted by the Commissioner” in her “sole discretion.” Pet.App.167a.
Philadelphia has doubled down on its existing system of individualized exemptions by creating a “Waiver/Exemption Committee” to consider other types of contract exemptions. Phila. BIO 15. Had the Sixth or Tenth Circuits heard this case, this alone would have mandated strict scrutiny. Pet.23-24.
The Sixth, Tenth, and Eleventh Circuits also apply strict scrutiny where categorical exemptions for secular conduct are present. Philadelphia makes such exemptions from its FPO. Pet.11; Phila. BIO 24. Indeed, Philadelphia acknowledges that agencies may “consider mental health, ethnicity, and family relationships” of prospective foster parents—all protected statuses under the FPO. Ibid. Philadelphia claims that such exceptions are permissible when they “reflect[] a neutral judgment”—a term Philadelphia struggles to define and that seems designed to prohibit only religious accommodations. Phila. BIO 1, 24. Philadelphia also claims these exceptions are justified in order to “signal to children in the foster-care system that the City respects their rights.” Ibid. But excluding CSS to signal that its religious beliefs are out of step with the City’s beliefs, or to signal support for opposing beliefs, is hardly neutral.
In the Sixth, Tenth, and Eleventh Circuits, this practice would face strict scrutiny. Pet.23-25. Yet the Third Circuit decided that CSS would have to demonstrate not just some secular exceptions, but that Philadelphia “treat[ed] CSS worse than it would have

5
treated another organization that did not work with same-sex couples as foster parents but had different religious beliefs.” Pet.App.32a. This was not, as Respondents would have it, a stray remark, but—as the Third Circuit said—“The question in our case.” Pet.App.32a.
2. The Second, Sixth, Seventh, Eighth, and Tenth Circuits look to a policy’s history in determining whether it is neutral. Pet.25. Throughout this litigation, Philadelphia has flailed about among post-hoc justifications to reach its desired result. See supra 23; Pet.11-15. This is a shell game. Philadelphia cannot settle on a consistent policy, but settles on one unwavering outcome: CSS’s religious conduct must be prohibited.
Respondents assert that Plaintiffs simply lacked evidence the policies were non-neutral. Yet Respondents do not dispute the facts underlying the claim. They do not dispute their four policy shifts; instead they add two more. They spend pages attempting to rehabilitate statements of the City Council and Commissioner Figueroa, but do not dispute what was said. See Phila. BIO 6-8, 11; Intervenors BIO 10-11, 13; see also Pet.App.32a-34a.1 The dispute in this case is not over the facts, but over which rule of law governs those facts.
According to the Third Circuit, even facts showing religious targeting are insufficient so long as the court can also identify some ostensibly neutral purpose for
1 They simply ignore the actions of the Human Relations Commission, and urge the Court to look at anything other than the mayor’s tweets. See ibid.

6
the government action. Pet.App.37a-38a. In contrast, the Tenth Circuit holds that non-neutral actions may arise “not out of hostility or prejudice, but for secular reasons.” Pet.26-27. The Sixth Circuit holds that a policy created in response to a religious exemption request (not to mention six such policies) is not neutral. Pet.25-27. And the Second Circuit holds that where “purposeful and exclusive regulation exists—where the object of the law is itself the regulation of religious conduct—the law is subject to heightened scrutiny[.]” Central Rabbinical Cong. v. New York City Dep’t of Health, 763 F.3d 183, 196 (2014). The Seventh and Eighth Circuits likewise look to a new policy’s history when determining neutrality. Pet.26. Respondents never address any of these cases.
* * *
The Third and Ninth Circuits allow policies exempting secular conduct, but not religious conduct, unless a plaintiff proves that the differential treatment was motivated by plaintiffs’ religion. Compare Stormans, Inc. v. Wiesman, 794 F.3d 1064, 1077 (9th Cir. 2015) (upholding law which “applies to all objections to delivery that do not fall within an exemption, regardless of the motivation behind those objections”) with Fulton, Pet.App.26a (“[A] challenger under the Free Exercise Clause must show that it was treated differently because of its religion.”). They also do not credit evidence that a law was targeted at a religious practice so long as the law has an ostensibly neutral goal. Pet.20-22. In contrast, six other circuits hold that laws must face strict scrutiny if they either create exemptions or have a history indicating non-neutrality. Pet.23-27. Scholars too have highlighted the split and

7
urged the Court to determine “how much analogous secular conduct can be left unregulated before a law ceases to be generally applicable.” Laycock at 11, 15. That question is squarely presented here.
B. This case is an excellent vehicle to revisit Smith.
This deep split exists for a reason: Smith. Courts, invoking Smith, may “defer to the political branches on questions of formal neutrality and the scope of exemptions,” be “myopic and deferential in considering claims that analogous secular behavior has gone unregulated,” and may not be “vigorous about checking for bad motive or religious gerrymander.” Douglas Laycock, The Remnants of Free Exercise, 1990 Sup. Ct. Rev. 1, 42, 54 (1990). “Everything” under Smith “seems to depend on judicial willingness to enforce the exceptions and police the neutrality requirement.” Id. at 54. Unsurprisingly, Smith has spawned fractured decisions filled with “after-the-fact maneuvering” to avoid the Free Exercise Clause. See, e.g., Masterpiece Cakeshop v. Colorado Civil Rights Comm’n, 138 S. Ct. 1719, 1737 (2018) (Gorsuch & Alito, JJ., concurring). Absent review, such maneuvering may upend the “long, unbroken history of faith-based providers caring for children.” Members of Cong. Amicus Br. 4-10.
Respondents’ remaining arguments against Smith are a sideshow. See Phila. BIO 26-27. As we discuss below, there is no “public function” exception to the First Amendment. Nor does the Establishment Clause prohibit accommodation. Here, unlike in Larkin or Teen Ranch, no one must go through CSS; it is one of 29 agencies in an open-ended system of true private

8
choice. Moreover, “this Court has never held that religious institutions are disabled by the First Amendment from participating in publicly sponsored social welfare programs.” Bowen, 487 U.S. at 609. Further, the suggestion that CSS should just exercise religion by serving some other group in some other way makes no sense. Governments cannot point to other forms of religious exercise in hopes of avoiding a Free Exercise violation. See Holt v. Hobbs, 135 S. Ct. 853, 862 (2015).
All parties know—and until Philadelphia’s BIO, agreed—that this case turns on how and whether Smith applies. Below, Philadelphia argued that ruling for CSS would “upend Smith.” Resp. C.A. Br. 28. The Third Circuit agreed, claiming that ruling for CSS “runs directly counter to the premise of Smith” and would render Smith a “dead letter.” Pet. App.37a-38a. But now, to avoid Smith’s reconsideration, Respondents claim “Smith is not outcome determinative.” Phila. BIO 26-27; see also Intervenors BIO 24. This is contrary to the arguments below and the Third Circuit’s reasoning.
This Court should grant certiorari to revisit Smith. If Smith gives Philadelphia’s made-to-prohibit-CSS policies a free pass, then the only “dead letter” is the Free Exercise Clause.
II. The Third Circuit’s opinion runs afoul of this Court’s unconstitutional conditions cases.
The Third Circuit allowed Philadelphia to exclude agencies that will not speak a government message in home studies. This splits with the Fifth Circuit’s en banc decision in Department of Texas, Veterans of Foreign Wars v. Texas Lottery Comm’n, 760 F.3d 427 (2014) (prohibiting the government from requiring a

9
license, and then conditioning that license on the content of the applicant’s speech). Respondents do not dispute this split. Instead, Philadelphia erroneously claims that “CSS does not allege a circuit split on this question.” Phila. BIO 29. Not so. See Pet.38 (“The Third Circuit’s decision * * * splits with the Fifth Circuit.”).
Further, the Third Circuit’s decision departs from this Court’s decision in Agency for Int’l Dev. v. AOSI, which held that the government may not condition participation in a government program on speech outside that program. 570 U.S. 205, 218-221 (2013). Here, Philadelphia admits that it has “nothing to do” with home studies. Pet.App.302a-303a.
Respondents also claim that this case is somehow different from other First Amendment cases because it involves a “public function.” Phila. BIO 29. But neither Respondent shows their work. They never define “public function” nor cite to any persuasive authority explaining why that distinction is relevant here. This argument is particularly odd as CSS has engaged in this work longer than Philadelphia. And the City’s own contract states that CSS “shall not in any way or for any purpose be deemed or intended to be an employee or agent of the City.” C.A. J.A. 1103.
But even if foster care were a public function (it is not), there is nothing talismanic about this. Education, public health, sanitation, and solemnization of marriages could all fall into Respondents’ nebulous category, yet the First Amendment still applies. See, e.g., Trinity Lutheran Church of Columbia, Inc. v. Comer, 137 S. Ct. 2012 (2017); Espinoza v. Montana Dep’t of Revenue, 435 P.3d 603 (Mont. 2018); Board of Cty.

10
Comm’rs v. Umbehr, 518 U.S. 668 (1996); Obergefell, 135 S. Ct. at 2594, 2602, 2607.
Philadelphia frets over “mayhem in government contracting” if CSS prevails. Phila. BIO 30. But as this Court has observed, there is a “long” (mayhem-free) “history of cooperation and interdependency between governments and charitable or religious organizations,” based in accommodation. Bowen, 487 U.S. at 609.2
III. This case presents an ideal vehicle for addressing the questions presented and resolving issues of national importance.
1. Respondents’ attempts to manufacture factual obstacles to certiorari are unsuccessful. There is no factual dispute over the core issue before this Court: whether Philadelphia may shut out a Catholic foster care agency because it disagrees with the agency’s sincere religious beliefs about marriage. There is no dispute that Philadelphia’s actions would prevent CSS from engaging in its sincere, century-old religious exercise: providing foster care for Philadelphia’s most vulnerable children. Nor is there any dispute that CSS’s beliefs about marriage are the impetus for this hostility. Nor is there any dispute about whether any same-sex couples had ever even asked CSS for a home study.
2 Contra Respondents, CSS does not seek an “indefinite” contract, but merely the ability to participate without First Amendment violations. AOSI sought—and received—the same kind of remedy. See AOSI, 570 U.S. at 211-212. So did Trinity Lutheran. Trinity Lutheran, 137 S. Ct. at 2022.

11
Philadelphia points to other services CSS provides and suggests that CSS’s foster care closure is speculative. Phila. BIO 22-23. Both arguments fail. There is no question that without the ability to contract with Philadelphia, CSS would soon be forced to close its foster care program; Respondents’ only quibble is how soon. Pet.17-18. Nor is there any question that CSS would then be unable to serve Philadelphia children in this way. Pet.6.
Respondents’ other objections fare no better. They object that the record is “stale” because the ongoing exclusion of CSS began under an annual contract that has expired. Intervenor BIO 21. This Court has reviewed government grant programs and rejected the argument that litigation-driven changes to those programs preclude review. See AOSI, 570 U.S. at 211-212, 219 (considering renewable grant program and rejecting claim that “the affiliate guidelines, established while this litigation was pending, save the program.”). And Philadelphia limits all contracts to one-year terms absent express legislative authorization. Phila. City Charter § 2-309. By this logic, it is impossible to challenge any Philadelphia contract, as the dispute would always be “stale.”
Philadelphia claims that the record below is insufficient. Far from it. The District Court held a threeday evidentiary hearing resulting in a 742-page transcript, and the Third Circuit received a 1,200-page record. This Court frequently hears First Amendment cases on preliminary injunction records, as in NIFLA, Holt, Hobby Lobby, and AOSI. Finally, Philadelphia claims that review would not be outcome-determinative because the Third Circuit “squarely held” Petitioners lost on the non-“likelihood of success” factors.

12
See Phila. BIO n.5. But the Third Circuit said the exact opposite, explaining that likelihood of success prong “alone defeats the request for a preliminary injunction.” Pet.App.50a. And the Third Circuit’s weighing of the other factors depended upon its finding of no countervailing constitutional violation. Ibid.
2. The Third Circuit’s decision threatens all manner of religious groups, including hospitals, homeless shelters, and many others who partner with the government to serve vulnerable populations. These religious groups, and the government agencies who work with them, need guidance from this Court. The decision below goes further than those before, denying a church the ability to remain faithful to its sincere beliefs while serving those in need.
Even in the specific context of adoption and foster care, our country has already seen nearly a decade of closures of faith-based adoption programs. Pet.39. Without relief, CSS will be forced to close its program. Philadelphia does not dispute this fact, nor that it needs more foster parents. Nor does it, or can it, contest the history of religious agency shutdowns during a period of great need.
As the Court explained last Term, the Religion Clauses “aim to foster a society in which people of all beliefs can live together harmoniously.” American Legion v. American Humanist Ass’n, 139 S. Ct. 2067, 2074 (2019). The Third Circuit instead embraced a view of the Free Exercise Clause that mandates the closing of a century-old religious ministry to foster children. That divisive approach should not stand.
CONCLUSION
The Court should grant the petition.

13

NICHOLAS M. CENTRELLA CONRAD O’BRIEN PC 1500 Market Street Suite 3900
Philadelphia, PA 19102 (215) 864-8098

Respectfully submitted.
MARK. L. RIENZI Counsel of Record
LORI H. WINDHAM NICHOLAS R. REAVES WILLIAM J. HAUN JACOB M. COATE THE BECKET FUND FOR
RELIGIOUS LIBERTY 1200 New Hampshire
Ave., NW Washington, DC 20036 mrienzi@becketlaw.org (202) 955-0095

OCTOBER 2019

Counsel for Petitioners

 
 No. 19-123
In the Supreme Court of the United States

SHARONELL FULTON, ET AL., Petitioners,
v.
CITY OF PHILADELPHIA, ET AL., Respondents.

On Petition for Writ of Certiorari to the United States Court of Appeals
for the Third Circuit

CITY RESPONDENTS’ BRIEF IN OPPOSITION

MARCEL S. PRATT City Solicitor
DIANA P. CORTES JANE LOVITCH ISTVAN ELEANOR N. EWING BENJAMIN H. FIELD ELISE BRUHL MICHAEL PFAUTZ CITY OF PHILADELPHIA LAW DEPARTMENT 1515 Arch Street Philadelphia, PA 19102 (215) 683-5014

DEEPAK GUPTA Counsel of Record
JONATHAN E. TAYLOR LARK TURNER ALEXANDRIA TWINEM GUPTA WESSLER PLLC 1900 L Street, NW, Suite 312 Washington, DC 20036 (202) 888-1741 deepak@guptawessler.com
JOSHUA MATZ KAPLAN HECKER & FINK 350 Fifth Avenue, Suite 7110 New York, NY 10118 (212) 763-0883

Counsel for Respondents City of Philadelphia, Department of Human Services for the City of Philadelphia, and Philadelphia Commission on Human Relations

October 10, 2019

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QUESTIONS PRESENTED
The petition presents three questions:
1. Can free-exercise plaintiffs succeed only by proving a particular type of discrimination claim—namely, that the government would allow the same conduct by someone with different religious views—or must courts consider other evidence that a law is not neutral and generally applicable?
2. Should Employment Division v. Smith be revisited?
3. Does the government violate the First Amendment by conditioning a religious agency’s ability to voluntarily contract with the government to perform a public function on that agency’s compliance with key program requirements that allegedly contradict the agency’s religious beliefs?

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TABLE OF CONTENTS Questions presented...............................................................i Table of authorities ............................................................. iii Introduction ...........................................................................1 Statement ...............................................................................4
A. Factual and legal background ..............................4 B. This case ..................................................................9 C. The interim contract and the City’s new
exemption-review procedures.............................14 Reasons for denying the petition.......................................16
I. There is no circuit split over the type of evidence that may be considered in Free Exercise Clause claims. .......................................16
II. Even if there were a split over what evidence to consider, this case would be a hopelessly flawed vehicle to address it. ............20
III. The City did not act with religious hostility in enforcing its generally applicable and longstanding nondiscrimination policy..............23
IV. This is not a suitable vehicle for revisiting Employment Division v. Smith.........................25
V. The decision below correctly applied this Court’s unconstitutional-conditions precedents. ...........................................................28
Conclusion ............................................................................31

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TABLE OF AUTHORITIES
Cases
Agency for International Development v. Alliance for Open Society International, 570 U.S. 205 (2013) ..................................................26, 29
Bowen v. Roy, 476 U.S. 693 (1986) ........................................................27
Church of the Lukumi Babalu Aye, Inc. v. City of Hialeah, 508 U.S. 520 (1993) ..........................................................2
Employment Division v. Smith, 494 U.S. 872 (1990) ..........................................................3
Fraternal Order of Police v. City of Newark, 170 F.3d 359 (1999)........................................................16
Gamble v. United States, 139 S. Ct. 1960 (2019) ....................................................28
Kennedy v. Bremerton School District, 139 S. Ct. 634 (2019) ......................................................28
Kimble v. Marvel Entertainment, LLC, 135 S. Ct. 2401 (2015) ....................................................28
Kisor v. Wilkie, 139 S. Ct. 2400 (2019) ....................................................28
Larkin v. Grendel’s Den, Inc., 459 U.S. 116 (1982) ........................................................27
Locke v. Davey, 540 U.S. 712 (2004) ........................................................26
Lyng v. Northwest Indian Cemetery Protective Association, 485 U.S. 439 (1988) ........................................................27

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Masterpiece Cakeshop v. Colorado Civil Rights Commission, 138 S. Ct. 1719 (2018) ................................................2, 25
McCreary County, Kentucky. v. American Civil Liberties Union of Kentucky, 545 U.S. 844 (2005) ........................................................22
Roberts v. U.S. Jaycees, 468 U.S. 609 (1984) ........................................................28
Rust v. Sullivan, 500 U.S. 173 (1991) ........................................................29
Stormans, Inc. v. Wiesman, 136 S. Ct. 2433 (2016) ....................................................19
Stormans, Inc. v. Wiesman, 794 F.3d 1064 (9th Cir. 2015) .......................................18
Teen Ranch, Inc. v. Udow, 479 F.3d 403 (6th Cir. 2007) .........................................29
Tenafly Eruv Association v. Borough of Tenafly, 309 F.3d 144 (3d Cir. 2002)...........................................17
Trinity Lutheran Church of Columbia, Inc. v. Comer, 137 S. Ct. 2012 (2017) ....................................................30
United States v. Lee, 455 U.S. 252 (1982) ........................................................28
Statutes, Rules, and Regulations
Supreme Court Rule 10 ......................................................21 23 Pa. Cons. Stat. § 6344.......................................................4
23 Pa. Cons. Stat. § 6344(d)..................................................4
Philadelphia Code § 9-1100 et seq........................................6

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Other Authorities City of Philadelphia Law Department,
Waiver/Exemption Committee (April 2, 2019), https://perma.cc/WT8Z-R3V4 ...................................... 15 New Privacy Review and Waiver/Exemption Committees, City of Philadelphia (Apr. 3, 2019), https://perma.cc/ C3PQ-K6SY .....................................15

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INTRODUCTION
The City of Philadelphia contracts with private agencies to help it fulfill its obligations to care for abused and neglected children—including, among other things, the recruiting, screening, and certification of eligible foster parents. Private foster-care agencies that choose to contract with the City are paid with taxpayer funds to perform this public function. This case concerns just one obligation of Catholic Social Services in just one of its contracts with the City: the obligation to give a fair look to every prospective foster parent who walks in the door.
For many years, the City’s standard foster-care contracts have prohibited discrimination based on characteristics enumerated in the Philadelphia Fair Practices Ordinance, including race and sexual orientation. The City has never allowed contractors to turn away potential foster parents based on a protected characteristic. Although this longstanding policy applies to all City contractors—and although the City has long contracted with Catholic Social Services, and continues to do so for a range of other child-welfare services—CSS contends that the City’s decision to enforce this policy against it reflects religious hostility. On that basis, CSS seeks a “highly unusual” remedy: “an injunction forcing the City to renew a public services contract with a particular private party,” free of the nondiscrimination policy. Pet. App. 25a n.8.
The Third Circuit affirmed the district court’s denial of this requested preliminary injunction. It concluded that CSS had “failed to make a persuasive showing that the City targeted it for its religious beliefs, or is motivated by ill will against its religion, rather than sincere opposition to discrimination on the basis of sexual orientation.” Pet. App. 12a. And it recognized that courts may find “ostensibly neutral government action unconstitutional because it

-2-
was motivated by ill will toward a specific religious group or otherwise impermissibly targeted religious conduct.” Pet. App. 26a (citing Masterpiece Cakeshop v. Colorado Civil Rights Comm’n, 138 S. Ct. 1719 (2018) and Church of the Lukumi Babalu Aye, Inc. v. City of Hialeah, 508 U.S. 520 (1993)). “These cases,” the court observed, hold “that the government may not conceal an impermissible attack on religion behind a cloak of neutrality and general application.” Id. “Thus, a challenger under the Free Exercise Clause must show that it was treated differently because of its religion. Put another way, it must show that it was treated more harshly than the government would have treated someone who engaged in the same conduct but held different religious views.” Id.
Seizing on this last sentence and plucking it out of context, CSS tries to portray the Third Circuit’s decision as announcing a new rule that a plaintiff may prevail only by making “one specific showing: that the government would allow the same conduct by someone who ‘held different . . . views.’” Pet. 19. But this attempt is belied by the decision itself, which considered in detail all the factors that CSS says would be excluded under this supposed new rule: the history of the challenged government policy, CSS’s allegation that the City’s Department of Human Services allowed secular but not religious exemptions, and CSS’s allegation that DHS maintained a practice of individualized exemptions. Pet. App. 32a-39a. Considering all this, the court below found that “City officials repeatedly emphasized that they respected CSS’s beliefs as sincere and deeply held,” and that there was no credible indication that the policy had been “gerrymandered” nor any evidence of “religious persecution or bias.” Pet. App. 32a, 36a, 51a.

-3-
CSS’s claimed split rests on its mischaracterization of the decision below. There is no split. No court has adopted CSS’s imagined rule. And even if there were such a split, it would make no difference: The decision below already considered all the factors CSS identifies and concluded that they do not change the outcome. The parties and the court all agreed on the relevant legal rules. What CSS really seeks is factbound error correction of the Third Circuit’s application of those rules.
But this case is a particularly unsuitable vehicle for such a fact-intensive inquiry. It arises from a spare and obsolete record developed over just two weeks, with no discovery, before the 2018 contract expired. The Third Circuit held that the controversy over that contract “is now moot,” Pet. App. 25a, and CSS does not contend otherwise in this Court. The record tells us nothing about the parties’ subsequent contract negotiations, the City’s formulation of a new standard contract, or its announcement of a new committee to resolve religious objections of the kind made by CSS. Because CSS chose not go back to the district court to develop a record, the claims and defenses here would turn on contested facts that this Court would have to adjudicate in the first instance.
CSS also urges review of two concededly splitless issues. The Court should not grant certiorari to reconsider Employment Division v. Smith, 494 U.S. 872 (1990). This case would be an especially problematic vehicle in which to do so: It arises in the context of a government contract dispute with serious countervailing Establishment Clause implications. Nor should this Court grant consider CSS’s unconstitutional-conditions theory. The City’s ability to impose conditions on the receipt of City funds for City services—here, conditions on who may receive those public services—is well established under this Court’s cases.

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STATEMENT
A. Factual and legal background
Philadelphia’s obligations to abused and neglected children. Pennsylvania law requires local agencies— including the City of Philadelphia, through its Department of Human Services (DHS)—to accept and assume custodial responsibility for children who have been abused or neglected. 23 Pa. Cons. Stat. § 6344(d); 55 Pa. Code § 3700.62 et seq. It also charges these agencies with advancing the well-being of children within their care, consistent with the best interest of each child. The Commonwealth of Pennsylvania, DHS, and a number of private foster-care agencies each play a role in the City’s foster-care system.
The City has protective custody of roughly five thousand children who cannot live with their legal parents. Many of these children are placed in homes with foster parents, though some are also in “congregate care,” such as group homes, institutional placements, or residentialtreatment facilities. The City also provides foster care to this population partly by using taxpayer funds to contract with private community-umbrella agencies and private foster-care agencies, each of which must be licensed by Pennsylvania and is subject to child-welfare laws and regulations. See 23 Pa. Cons. Stat. § 6344.
The City’s Department of Human Services has long contracted with Catholic Social Services (CSS)—and other religious organizations—to provide public childwelfare services. To this day, the Department works closely with CSS to provide a range of services and values its ongoing relationship with CSS. CSS serves Philadelphia’s at-risk children through congregate care, as a community-umbrella agency, and through private foster care. This case concerns only CSS’s obligations as a family

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foster-care agency. When this litigation began, the City was paying CSS to perform that role—which encompasses, among other things, identifying and recruiting potential foster parents, as well as training and certifying them on a continuing basis. This relationship, like the City’s relationships with other private foster-care agencies performing the same function, was structured through one-year contracts renewable on an annual basis. Agencies certify their continuing compliance with applicable state regulations and other terms set by the City.
Catholic Social Services’ now-expired contract with the City of Philadelphia. When a prospective foster parent walks into a private foster-care agency to apply to be a foster parent, the City contract requires the agency to evaluate and assess that person for certification. The contract between the Department and CSS for FY 2018— which was substantially similar to the City’s FY 2018 contracts with all other private foster-care agencies— included a provision obligating CSS “to recruit, screen, train, and provide certified resource care homes” for dependent children or youth, consistent with state law. CA3 J.A. 1033. The contract further required that CSS “obtain Certifications as required by law and by DHS policy,” including for “all prospective foster parent applicants [and] all prospective adoptive parent applicants.” Id. at 1078-79.
The Department expects each agency with whom it contracts to evaluate and assess for certification each and every prospective foster parent that wishes to work with it. To that end, its contract with CSS, like its contracts with other agencies, expressly prohibited discrimination on certain specified grounds and required compliance with the City’s Fair Practices Ordinance. This ordinance precludes discrimination based, among other things, on race and sexual orientation. DHS has never authorized

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providers to refuse to certify, let alone refuse to establish fostering relationships with, prospective parents because of their membership in any protected category, including sexual orientation. And long before this dispute arose, DHS believed that each of its foster-care providers would consider every prospective parent who requested to work with that agency.1
The City has good reason for applying its general ban on discrimination in this context. Excluding qualified parents based solely on their sexual orientation, DHS Commissioner Cynthia Figueroa has explained, would do a disservice to children in the foster system, unnecessarily limit the pool of available parents, and send “a very strong signal to [the LGBTQ] community that [its] rights are not protected.” CA3 J.A. at 483-84. In addition, the Department’s significant LGBTQ youth population would receive the message that while “[we] support you now, we won’t support your rights as an adult.” Id. at 484. In light of these and other concerns, which are reflected in many dimensions of the City’s public policy, DHS does not want to discriminate “against one particular community” by “excluding” its members from becoming foster parents. Id. at 434, 668. Accordingly, the Department has never allowed any foster-care agency to engage in the blanket exclusion of prospective foster parents based solely on protected traits when performing a public function on behalf of the City under contract.
Catholic Social Services’ policy on same-sex couples. On March 9, 2018, the Department learned from a
1 The City adopted the Fair Practices Ordinance in 1963 and amended it in 1982 to prohibit discrimination based on sexual orientation. Today the ordinance prohibits discrimination on the basis of, among other things, race, religion, sexual orientation, gender identity, and marital status. See Phila. Code § 9-1100 et seq.

-7-
Philadelphia Inquirer reporter that two of the Department’s contractor foster-care agencies—Catholic Social Services and Bethany Christian Services—had policies of categorically refusing service to same-sex couples seeking to become foster parents. This was the first that DHS had heard about such policies.
Commissioner Figueroa was immediately concerned that CSS and Bethany were at risk of violating their City contracts with DHS, and contacted the City’s Law Department.2 She also called both CSS and Bethany to determine the accuracy of the Inquirer report and learned from both that they refused, on religious grounds, to consider same-sex couples for certification as foster parents. Commissioner Figueroa also called other foster-care agencies to inquire about their practices, focusing on religious agencies because she understood the particular objections at issue to arise from religious belief, but also calling at least one agency that was not religiously affiliated to determine its policy. None of the other agencies she contacted had a similar policy.
Commissioner Figueroa consulted with the City’s lawyers, who told her that CSS’s policy would, in practice, violate the City’s Fair Practices Ordinance and the services provision of their contract with the Department. Because this raised a serious legal issue that could affect CSS’s ability to enter into the upcoming year’s contract, DHS and CSS convened a meeting. There, CSS Secretary James Amato stated that, for religious reasons, CSS “would not move forward with a home study for a samesex couple.” Pet. App. 271a. He added that CSS had provided services to the City for over one hundred years.
2 After the Inquirer article was published, the City Council passed a resolution related to the article’s claims. Pet. App. 146a-147a. The Council does not play a role in DHS contracting.

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Commissioner Figueroa responded by emphasizing that this history was not conclusive: She observed that times had changed over the course of that relationship, that women and African-Americans did not have the same rights when it started, and that she herself would likely not have been in her position a century earlier. Id. at 305a. Commissioner Figueroa—herself a lifelong Catholic— also said something like, “it would be great if we followed the teachings of Pope Francis.” Id. at 306a.
Ultimately, CSS made clear that it would not comply with its contractual requirement to evaluate and consider certifying same-sex couples. CSS would therefore be unable to renew its contract for providing those services. As a result, Commissioner Figueroa decided to stop placing new children with CSS while discussions over the status of the contract continued. This decision was consistent with the parties’ contract, which does not require the City to make any placement referrals with particular providers. It was also consistent with Commissioner Figueroa’s past practice, which has been to close intake to an agency whenever it is at risk of no longer providing services, regardless of the reason, to minimize the number of children’s placements that might need to be changed or transferred if the relationship ends. Commissioner Figueroa’s intake closure went into effect on March 15, 2018, though the City allowed exceptions where a child had siblings in a CSS home or where a CSS foster family had a prior relationship with the child. The district court credited Commissioner Figueroa’s testimony that DHS was solely responsible for this decision. Id. at 97a.
The intake freeze had limited consequences. It did not affect children already placed with CSS. Nor did it affect the overwhelming majority of DHS’s contractual relationships with CSS—namely, CSS’s congregate-care and

-9-
community-umbrella-agency services, which remain fully active to this day under a new, multimillion-dollar contract. As the City’s Law Department made clear in a letter to CSS, the City has “respect [for CSS’s] sincere religious beliefs” and does not “want to see [its] valuable relationship with CSS . . . come to an end.” Pet. App. 169a-171a. It hoped that CSS might agree to comply with the City’s Fair Practices Ordinance so the parties could enter into a new contract. Id. In the meantime, the City emphasized its willingness to enter into an interim maintenance contract “to continue to supervise the foster children in its care properly with the least amount of disruption for them.” Id. at 171a.
B. This case
Proceedings in the district court. In May 2018, just weeks before its contract was set to expire, CSS sued the City, DHS, and the Philadelphia Commission on Human Rights and moved for a temporary restraining order and preliminary injunction shortly thereafter. CSS asked the court to require the City to continue its contractual relationship with CSS in spite of CSS’s policy to turn away same-sex couples, or else require it to enter into a new contract on CSS’s terms. Following hearings in June 2018, the district court denied CSS’s motion. It first found that the FY 2018 contract (which had by then expired) explicitly incorporated the Philadelphia Fair Practices Ordinance and that CSS’s foster services qualified as public accommodations under City law. Pet. App. 73a-79a. On this basis, it found that CSS’s policy would, in practice, have violated its contract with the City. See id.
Next, the district court held that the City may include a neutral, generally applicable nondiscrimination clause in contracts with foster-care providers accepting public money to render City services to City residents. Id. at 79a-

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88a. It noted the City’s many neutral, legitimate reasons for seeking compliance with that clause. These include ensuring contractors adhere to terms they have agreed to; ensuring that all qualified Philadelphians have access to governmental services provided by contractors and paid for by their taxes; and ensuring that “the pool of foster parents and resource caregivers is as diverse and broad as the children in need of foster parents and resource caregivers.” Id. at 88a-93a.
Finally, the district court concluded the City had not targeted CSS on the basis of hostility to its religious beliefs. After a thorough examination of the history and implementation of the challenged policy, the court found no evidence that any involved City official had acted with improper motive. Id. at 94a-101a.3 Nor had DHS elsewhere allowed exceptions from the challenged policy: “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.” Id. at 100a.
Following the denial of its motion for preliminary relief, CSS unsuccessfully sought emergency injunctive relief in the Third Circuit and this Court.
Proceedings on appeal. The Third Circuit unanimously affirmed. Because the contractual dispute was moot, the court was left to consider only “whether [DHS] may insist on the inclusion of new, explicit language forbidding discrimination on the ground of sexual
3 CSS also attempted to prove improper motive through statements made by the Mayor, including before he took office. Pet. App. 94a-98a & n.26. Considering this evidence, the district court found the Mayor’s comments irrelevant because “there was insufficient evidence at the preliminary injunction phase to show that the Mayor had any influence in DHS’s decisions in this case.” Id. at 94a.

-11-
orientation as a condition of contract renewal, or whether it must offer CSS a new contract that allows it to continue engaging in its current course of conduct.” Id.
The Third Circuit held that, taking all the evidence into account, CSS had failed at the preliminary injunction stage “to make a persuasive showing that the City targeted it for its religious beliefs, or is motivated by ill will against its religion, rather than sincere opposition to discrimination on the basis of sexual orientation.” Id. at 12a. To the contrary, the record showed “[t]he City has acted only to enforce its non-discrimination policy in the face of what it considers a clear violation.” Id. at 32a.
To explain this conclusion, the court devoted ten full paragraphs of its opinion to a comprehensive review of all of the evidence put forth by CSS as evidence of alleged religious discrimination. Id. at 32a-38a. Finding CSS’s reliance on a single ambiguous statement by the City Council to be unpersuasive, the court concluded that City officials had in fact “repeatedly emphasized that they respected CSS’s beliefs as sincere and deeply held.” Id. at 32a. It agreed with the district court that “nothing” in the record indicated that the Mayor played a direct “or even a significant” role in the process. Id. at 34a. And the court was likewise unpersuaded that Commissioner Figueroa’s conduct evinced either targeting or ill will. It explained that her decision to call mostly religious agencies following the Inquirer article made sense where “[s]he had little reason to think that nonreligious agencies might have a similar policy.” Id. at 33a. And her reference to Pope Francis’s teachings in negotiations with CSS was made in “an effort to reach common ground with Amato by appealing to an authority within their shared religious tradition” and did not offend the First Amendment. Id.

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Nor did CSS prove it was treated differently on the basis of religion. The court saw no evidence to support CSS’s contention that the City was enforcing its longstanding Fair Practices Ordinance “disingenuously or as a pretext for persecuting CSS.” Id. at 34a. CSS’s only basis for this claim is its unsupported allegation that City policy allowed agencies to refer away prospective parents in some circumstances. Both the district court and Third Circuit determined that CSS introduced insufficient evidence to support this contention. Id. at 35a. Even if such referrals occur, the panel noted that DHS could, consistent with such referrals and its actions in this case, “insist that, while agencies are free to inform applicants if they believe a different agency would be a better fit, they must leave the ultimate decision up to the applicants.” Id.
This left CSS’s argument that because the City may, for secular reasons, consider certain protected traits (such as race or disability) in placing children with alreadyapproved foster parents, it should allow CSS to turn away same-sex prospective foster parents for religious reasons. In evaluating this argument—which rested on CSS’s assertion that the City allowed exemptions from its nondiscrimination policy for secular but not religious reasons—the court noted “many differences between CSS’s behavior and the City’s consideration of race or disability when placing a foster child.” Id. at 36a. “Most significantly,” the court noted, “unlike CSS, [DHS] never refuses to work with individuals because of their membership in a protected class. Instead it seeks to find the best fit for each child, taking the whole of that child’s life and circumstances into account.” Id.
With no indication that the policy had been “gerrymandered,” no “history of ignoring widespread secular violations,” and no “animosity against religion,” CSS presented

-13-
“insufficient evidence” of any Free Exercise Clause violation at the preliminary-injunction stage. Id. The evidence instead demonstrated that the City had long worked with CSS while fully aware of its religious character and its views on marriage; had continued to work closely with CSS and Bethany Christian on many other foster-care and related programs; and had expressed “a constant desire to renew its relationship with CSS as a foster care agency if it will comply with the City’s non-discrimination policies protecting same-sex couples.” Id. at 36a-37a.
The Third Circuit also rejected CSS’s claim that it has been impermissibly compelled to speak in violation of the First Amendment because it allegedly “has been required to adopt the City’s views about same-sex marriage and to affirm these views in its evaluations of prospective foster parents.” Id. at 41a. Among other things, “[t]he problem with this argument is that the ostensibly compelled speech occurs in the context of CSS’s performance of a public service pursuant to a contract with the government.” Id. at 40a. At bottom, while the City “would violate [the First Amendment] if it refused to contract with CSS unless it officially proclaimed its support for same-sex marriage,” the City may require that CSS “abide by public rules of non-discrimination in the performance of its public function under any foster-care contract.” Id. at 42a.
Finally, aside from the merits, the court concluded that CSS had failed to satisfy the other preliminary-injunction factors and pointedly noted that this “alone defeats the request for a preliminary injunction.” Id. at 50a. With respect to irreparable harm, the panel noted CSS had failed to demonstrate “that it is more likely than not” to “go out of business.” Id. It noted that CSS’s “[group-home] and Community Umbrella Agency functions are unaffected, it has other foster care contracts with

-14-
neighboring counties, and even as to its foster care services in Philadelphia CSS cites only to Amato’s selfprofessed ‘guess’ that it would have to cease those operations within months.” Id. Balancing the equities and considering the public interest, the court determined that neither factor favored issuing an injunction: “Placing vulnerable children with foster families is without question a vital public service, no doubt why there are 29 other foster care agencies, including Bethany Christian, that provide this service. Deterring discrimination in that effort is a paramount public interest.” Id. at 50a-51a.
C. The interim contract and the City’s new exemption-review procedures
The Department’s FY 2018 contract with CSS expired of its own accord on June 30, 2018. Before and after the contract expired, the City offered CSS a choice between two different foster-care contracts: (1) a full contract, under which DHS would reopen intake and CSS would be required to evaluate and certify prospective foster families in accordance with the City’s longstanding nondiscrimination provisions; or (2) an interim contract providing funds for ongoing care of those children currently placed in CSS foster homes. CSS decided to accept an interim contract.
CSS’s other, multimillion-dollar contracts with the City—such as those for group-home and case-management services—were renewed, and CSS continues to play a valued and integral role in helping the City care for children in its custody. There is no evidence that the closure of foster-care intake for CSS has had any negative impact on the City’s capacity to care for children in its custody. Since March 2018, when the City closed intake for CSS, the total number of children in DHS care generally has dropped by almost 1,000 children. There is

-15-
no indication that the City’s capacity to place children in foster care has diminished because one of its 30 providers is no longer taking on new foster children. The number of children in group homes has dropped by almost 200 since March 2018. In addition, the City has remained eager and able to assist any CSS foster parents seeking new placements in their homes by matching them with another agency with open intake.
Earlier this year, the City announced that it would “formalize and streamline” the City Law Department’s review of “complex constitutional and statutory issues that may arise from formal requests for waivers of, or exemptions from, City contracting requirements.”4 From now on, when such requests are brought to the attention of the Law Department by City agencies, active or threatened litigation, or parties with City contracts, a newly constituted Waiver/Exemption Committee will carefully address waiver and exemption requests in light of “complex constitutional issues, such as equal protection, due process, religious liberty, or other First Amendment concerns.” Id.
As noted above, Commissioner Figueroa appropriately involved expert legal counsel in the City’s Law Department in this matter from the outset, as soon as she learned of CSS’s policy. The new procedures now in place seek to ensure that, in the future, any request for a religious exemption of the sort at issue here would be directed to the Waiver/Exemption Committee and handled through the procedures that it establishes.
4 See City of Philadelphia Law Department, Waiver/Exemption Committee (April 2, 2019), https://perma.cc/WT8Z-R3V4; Linda Huss, New Privacy Review and Waiver/Exemption Committees, City of Philadelphia (Apr. 3, 2019), https://perma.cc/ C3PQ-K6SY.

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REASONS FOR DENYING THE PETITION
I. There is no circuit split over the type of evidence that may be considered in Free Exercise Clause claims.
The petition’s lead argument for certiorari attacks a rule of its own invention—a rule to which no circuit adheres. Pet. 20-22. Neither the Ninth Circuit nor the Third Circuit has ever held that a free-exercise plaintiff can prevail only by making “one specific showing: that the government would allow the same conduct by someone who ‘held different religious views.’” Pet. 19.
A. To the contrary, as a review of the decision below confirms, the Third Circuit—like this Court and every other circuit—allows free-exercise plaintiffs to prove their claims in precisely the way that CSS sought to do so: “by showing that the government issues individualized exemptions, that the law exempts secular conduct that undermines the government’s interest, or that [the] law’s history indicates non-neutrality.” Id. This is clear both from the legal standard articulated by the Third Circuit and from its application of that standard to the facts of this case.
Starting with the legal standard, it has long been established in the Third Circuit that a decision “to provide [secular] exemptions while refusing religious exemptions is sufficiently suggestive of discriminatory intent so as to trigger heightened scrutiny under Smith and Lukumi.” Fraternal Order of Police v. City of Newark, 170 F.3d 359, 365 (1999) (Alito, J.) (invalidating a police department’s grooming policy that allowed medical but not religious exemptions). By the same token, the Third Circuit has long made clear that “where government officials exercise discretion in applying a facially neutral law, so that whether they enforce the law depends on their evaluation

-17-
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 v. Borough of Tenafly, 309 F.3d 144, 165-66 (3d Cir. 2002) (Ambro, J.) (invalidating a facially neutral ordinance because it had been ignored for secular activity but enforced against Orthodox Jews).
The decision below recounted and reaffirmed Fraternal Order and Tenafly. It also discussed Lukumi and Masterpiece at length, highlighting that both decisions considered the full history of the challenged action in assessing potential free-exercise violations. See Pet. App. 26a (observing that, in Lukumi, “the history of the law’s adoption made plain” that “this was no earnest piece of animal welfare legislation but rather an attempt to suppress the practice of Santeria”); id. (describing Masterpiece and noting that it involved “similar demonstrations of religious animosity and differing treatment of religious conduct”). More generally, the Third Circuit recognized that “courts have found ostensibly neutral government action unconstitutional because it was motivated by ill will toward a specific religious group or otherwise impermissibly targeted religious conduct.” Id. (citing Masterpiece and Lukumi).
Surveying these decisions, the decision below described them as unified by a common thread: “religiously motivated conduct was treated worse than otherwise similar conduct with secular motives.” Id. at 31a. It was in this context, and with this background, that the court observed that free-exercise plaintiffs must show that they were treated “more harshly than the government would have treated someone who engaged in the same conduct but held different religious views.” Id. at 26a.

-18-
CSS seeks to manufacture a circuit split by taking that one line out of context, treating it as a stand-alone legal test, and asserting that it precludes consideration of any other evidence. But every premise of that argument is faulty, as the Third Circuit itself explicitly and repeatedly made clear. Each one of the considerations that CSS accuses the panel of deeming irrelevant to free-exercise analysis was affirmatively embraced by the panel and described as a means of proving a free-exercise violation.
Any conceivable doubt on that score is resolved by the court’s own application of law to fact. Over ten paragraphs, the panel meticulously probed the history of the challenged government action, CSS’s allegation that the Department allowed secular but not religious exemptions, and CSS’s allegation that the Department maintained a practice of individualized exemptions. Pet. App. 32a-38a. The panel did not state that any of these considerations were irrelevant. In fact, it did the opposite. And in the end, it held that the City’s policy “has not been gerrymandered as in Lukumi, and there is no history of ignoring widespread secular violations as in Tenafly or the kind of animosity against religion found in Masterpiece.” Id. at 36a.
B. The rule of law applied by the Third Circuit is also consistent with the law of the Ninth Circuit. In Stormans, Inc. v. Wiesman, 794 F.3d 1064 (9th Cir. 2015), the Ninth Circuit upheld a Washington State rule requiring the timely delivery of all prescription medications— including emergency contraceptives—by licensed pharmacies. There, too, the court held that facially neutral laws might be implemented in a manner that targets and burdens religious belief, id. at 1076-77; that the history of a challenged policy is central to a free exercise inquiry, id. at 1078-79; that it is impermissible to selectively exempt

-19-
secular but not religious conduct that undermines the government’s interest, id. at 1079-80; and that a scheme of discretionary individualized exemptions can offend the First Amendment, id. at 1081-82. Ultimately, however, the court concluded that the challenged rule survived review under each of these constitutional requirements.
This Court denied review. See Stormans, Inc. v. Wiesman, 136 S. Ct. 2433 (2016). In dissenting from the denial of certiorari, Justice Alito (joined by two other justices) did not take issue with the rule of law applied by the Ninth Circuit there—only with how the court had applied the law to the record in that case. In his view, “the Court of Appeals failed to accord the District Court’s findings appropriate deference,” “improperly substituted its own view of the evidence for that of the District Court,” and “overlooked” a particular aspect of the state regulatory scheme challenged there. 136 S. Ct. 2433, 2437-39 & n.3 (2016) (Alito, J., dissenting from the denial of certiorari). There was no suggestion that the Ninth Circuit’s opinion did what CSS claims it did—namely, split with multiple appellate decisions predating that opinion on a fundamental rule of constitutional law.
There is thus no sound basis for concluding, as the petition does (at 19), that Stormans rejects the relevance of individualized exemptions, history, or exemptions for secular but not religious conduct. And even if Stormans did say as much—which it does not—that would not make CSS’s petition worthy of review, because the decision below does not do so. Quite the opposite: the rule of law applied by the Third Circuit fully and properly protects free-exercise claimants, in keeping with the rule in every other circuit.

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II. Even if there were a split over what evidence to consider, this case would be a hopelessly flawed vehicle to address it.
A. Even if the circuit split alleged by CSS were real, it would not affect the outcome of this case. This is not a case where the Court need speculate about whether the alleged split is outcome determinative; the court below has already explained in exacting detail why it is not. According to CSS, the Third Circuit held that it could prevail only by showing “that the government would allow the same conduct by someone who ‘held different religious views.’” Pet. 19. CSS maintains that it was disallowed from seeking to prove its claims “by showing that the government issues individualized exemptions, that the law exempts secular conduct that undermines the government’s interest, or that [the] law’s history indicates non-neutrality.” Id. But the very factors CSS steadfastly insists were ignored were in fact analyzed by the court below—just not in CSS’s favor. Pet. App. 32a-39a.5
B. Aside from the fact that the question is not outcome determinative here, this case is also an especially unsuitable vehicle to address it because the parties and the court below all agree on the answer: free-exercise claims may be proven in the ways identified by CSS. As a result, what CSS really takes issue with is the Third Circuit’s application of the rule of law set forth in Smith, Lukumi, and Masterpiece. And what it really seeks from this Court is the factbound correction of that fact-intensive application
5 Indeed, none of CSS’s questions presented are outcome determinative because they all bear only on a single preliminary-injunction factor: likelihood of success on the merits. The panel below concluded that CSS had not met the other factors, and squarely held that “this alone defeats the request for a preliminary injunction.” Pet. App. at 50a (emphasis added).

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of the law to the facts. See S. Ct. R. 10 (“A petition for a writ of certiorari is rarely granted when the asserted error consists of erroneous factual findings or the misapplication of a properly stated rule of law.”). CSS makes this request, moreover, in an interlocutory posture, with a spare and obsolete factual record and a shifting factual context that render this case even further flawed as a vehicle.
Even for the period for which a record exists, it is no model of completeness. CSS moved for preliminary relief on June 5, 2018, weeks before the expiration of its contract with the City. There was no discovery, and the only extant record was developed over just two weeks. Following an evidentiary hearing on the preliminary-injunction motion, the district court ruled a few weeks later. No court has found any facts in this case since then. In its decision below, the Third Circuit repeatedly emphasized the limited state of the record, concluding that CSS had not made a sufficient record regarding secular exemptions, Pet. App. 35a, while noting that CSS “is of course able to introduce additional evidence as this case proceeds,” id. at 51a. CSS did not do so before coming to this Court.
The lack of factual clarity has only increased over the past year. The parties have engaged in multiple rounds of contract negotiations since the FY 2018 contract expired. The City has formulated a new standard contract, which includes an updated and more detailed nondiscrimination provision, for all foster-care service providers. And the City has publicly announced the creation of a Waiver/ Exemption Committee, which will establish more regular procedures and participate in resolving religious objections of the kind made by CSS. None of this is in the record—there are no facts about any of these important developments in the record as CSS presents it to the Court.

-22-
The state of the record matters here. The Third Circuit correctly held that the City’s conduct was entirely neutral with respect to religion. But if CSS were to attack that finding here, the City could further contend that any hint of alleged anti-religious taint has been cured. See McCreary Cnty., Ky. v. Am. Civil Liberties Union of Ky., 545 U.S. 844, 874 (2005) (rejecting the view that governments’ “past actions forever taint any effort on their part to deal with the subject matter”). The City might also observe that the creation of the Waiver/Exemption Committee eliminates CSS’s entitlement to prospective injunctive relief, to the extent that claim arises from alleged improprieties in the City’s decision-making process in mid-2018, before the FY 2018 contract expired and more than a year before the Committee was created. These are only two of many arguments that would turn on facts this Court would have to adjudicate in the first instance. CSS could have gone back to the district court to develop a record on these and other ongoing issues before seeking certiorari. It did not do so.
Nor has any court found facts bearing on the other preliminary-injunction factors as they currently stand— factors that the Third Circuit below identified as a distinct bar to relief. In the emergency application that it filed on July 31, 2018, CSS represented to this Court that it “has already been forced to begin the wind-down process and will likely be forced to close before its Third Circuit Appeal is complete.” Application at 18, Fulton v. City of Philadelphia, No. 18-A-118 (July 31, 2018). Now, more than one year later and following completion of the Third Circuit appeal, CSS represents that it still cares for about 60 children and retains three employees who work on foster care. Pet. 17-18. CSS makes no representations about the millions of dollars the City contracted to pay CSS under its three remaining contracts (the maintenance

-23-
foster-care contract, the group-home contract, and the community-umbrella contract). Nor does it make any representations about the total effect of the intake closure, which affects only 10% of its contracted foster-care work with DHS. Certainly, there is no record evidence that children in the City’s foster-care system are now suffering in any way as a result of the intake freeze, given the City’s broad network of providers and abiding commitment to caring for all children in its custody. The City disputes CSS’s incomplete and incorrect factual representations— and were this Court to grant review, it would have to adjudicate this factual dispute, too, in the first instance.
III. The City did not act with religious hostility in enforcing its generally applicable and longstanding nondiscrimination policy.
The decision below is correct. As the Third Circuit explained at length, Commissioner’s Figueroa’s statements during her conversation with Amato were not suggestive of religious targeting. Pet. App. 33a. To the contrary, her remarks—and her ongoing course of conduct—confirm a desire for strong relations with CSS. Id. at 36a-37a. And for the reasons explained below, the other evidence cited by CSS as evidence of hostility to its religious beliefs is irrelevant, obsolete, or reflective of a valid, secular desire to enforce contractual policies. To be clear: The City respects and values CSS’s religious freedom, and its rights to hold whatever beliefs it holds about same-sex marriage. But the City is lawfully permitted to include nondiscrimination requirements in its City-funded contracts for City services, and it did so here for legitimate secular reasons.
CSS contends that the City has adopted an impermissible scheme of exemptions from its nondiscrimination policy. Pet. 25. That is mistaken. The relevant policy here is the City’s requirement that agencies not categorically

-24-
exclude prospective foster parents based on protected traits. CSS identifies no other instance in which an agency was allowed to engage in such conduct. Because nobody has ever done this before, the City could not have (and has not) ever allowed any exemptions, and as a matter of logic it cannot be true that the City has privileged secular over religious motives in deciding which exemptions to grant.
CSS seeks to dodge that straightforward conclusion by asserting that agencies can discriminate based on protected traits in deciding where particular children should be placed. But any “exemptions” would not be exemptions from the relevant policy. Nor would they undermine or implicate the purposes of the nondiscrimination policy. The City prohibits agencies from considering protected traits in deciding whether to serve prospective parents to avoid the exclusion of qualified parents on grounds unrelated to the best interests of children, and to signal to children in the foster-care system that the City respects their rights. Allowing agencies to consider mental health, ethnicity, and family relationships—within the confines of making a judgment about advancing the best interests of a specific child in a specific placement—is consistent with the goals of that policy. Pet. App. 36a.
Put differently, allowing agencies to holistically consider protected traits to secure the best interests of a particular child while matching them to a new family is completely different than categorically excluding members of a particular group from even attempting to certify as foster parents. Treating these different practices differently reflects a neutral judgment, not hostility to religion.
For the same reason, CSS errs in suggesting—over the district court’s findings of fact to the contrary, Pet. App. 100a—that the City allows secular but not religious exemptions to its nondiscrimination policy through

-25-
tolerating a practice of “referrals.” Pet. 25. There is no evidence that any agency has ever been allowed to deny services to prospective parents based on protected traits. Agencies may advise prospective parents that another agency would make more sense for them, but the final decision is up to the parents, not the agency. Agency recommendations that seek to advance the interests of prospective parents or foster children are not exemptions to a policy that bars agencies from refusing to serve qualified parents.
Accordingly, the Third Circuit correctly concluded that there is no evidence of religious hostility or targeting and that the City has acted lawfully in proposing a contract to CSS that includes a nondiscrimination provision.
Finally, even apart from the fact that the question presented is splitless, not outcome determinative, and riddled with vehicle issues here, the Court should deny review because it evokes a broader set of cultural issues that merit further percolation. Barely a year ago, the Court observed that “the outcome of cases” involving the balance between LGBT rights and religious freedom “must await further elaboration in the courts.” Masterpiece, 138 S. Ct. at 1732. That process has only just begun; there are currently only nine published federal appellate cases that even cite Masterpiece, and none that applies its teachings in a remotely analogous factual context. The wiser path is to allow these issues to mature in American life and law before the Court returns to them in a fraught constitutional setting.
IV. This is not a suitable vehicle for revisiting Employment Division v. Smith.
Unable to satisfy the traditional criteria for certiorari, CSS pivots from arguing that certiorari is warranted because the decision below “directly conflicts” with Smith

-26-
to arguing that it is warranted because “Smith should be revisited.” Pet. 29-34. But CSS barely attempts to show the kind of special justification that might provide a basis for overturning precedent, and it makes no effort at all to show why this case should be the vehicle for considering that question. It does not even assert that the question is cleanly teed up or that the facts of this case present the right context for exploring it.
A. For starters, this case would be a poor vehicle in which to address Smith because CSS’s claim arises in the context of a government contract dispute. Substantial authority supports the City’s prerogative to impose generally applicable conditions—including nondiscrimination conditions—on those who voluntarily undertake to contract with the City to perform a taxpayer-funded public function. See Agency for Int’l Dev. v. Alliance for Open Soc’y Int’l, 570 U.S. 205, 213-14 (2013); Locke v. Davey, 540 U.S. 712 (2004). That context separates this case from a classic Smith case and would greatly complicate any effort to reconsider Smith on these facts. The petition makes no effort to overcome this hurdle.6
In addition, there are countervailing Establishment Clause concerns here that would further complicate any effort to revisit Smith on these facts. CSS seeks an unusual injunction that would require the City to vest a core City function in a religious entity that has committed to exercising that City responsibility—with City money—on the basis of religious law. While the City may contract with religious and secular agencies for the provision of services,
6 Other pending petitions likewise ask this Court to revisit or overrule Smith but, by contrast, do not present the question in the context of a government contract to perform a public function. See Ricks v. Idaho Contractors Bd., No. 19-66 (docketed July 12, 2019); Augustine Sch. v. Taylor, No. 18-1151 (docketed Mar. 6, 2019).

-27-
it may not empower a religious entity to impose religious tests or enforce religious criteria on applicants for City programs. See Larkin v. Grendel’s Den, Inc., 459 U.S. 116, 126 (1982) (“[T]he core rationale underlying the Establishment Clause is preventing ‘a fusion of governmental and religious functions.’”). “[T]he Framers did not set up a system of government in which important, discretionary governmental powers would be delegated to or shared with religious institutions.” Id. at 127. The pairing of a government-contracting dimension with a cross-cutting Establishment Clause limitation makes this case a particularly unsuitable vehicle for addressing the status of Smith.
B. In any event, Smith is not outcome determinative here. Even under the pre-Smith standard, and even setting aside any Establishment Clause issue, the City’s prerogative to set neutral terms for voluntary contracts involving City funds and City programs—not to mention core governmental functions—would have survived First Amendment scrutiny. See, e.g., Lyng v. Nw. Indian Cemetery Protective Ass’n, 485 U.S. 439, 449 (1988); Bowen v. Roy, 476 U.S. 693, 699-70 (1986). CSS does not cite any pre-Smith case invalidating a governmental contract term under the Free Exercise Clause, let alone on grounds even remotely similar to those at issue here. And even if strict scrutiny would have applied in a pre-Smith world—which is not the case—the City’s program survives such review. The City has a compelling, legitimate interest in prohibiting discrimination in its foster-care services program, and the inclusion of a nondiscrimination clause in its contracts is a narrowly tailored means of achieving that objective. See, e.g., Roberts v. U.S.

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Jaycees, 468 U.S. 609, 623 (1984); United States v. Lee, 455 U.S. 252, 261 (1982).7
C. Finally, the Court should deny review of this question because the standard for overcoming stare decisis has not been remotely satisfied, and CSS has hardly even attempted to do so. To be sure, several justices have recently hinted at an interest in revisiting Smith. See Kennedy v. Bremerton Sch. Dist., 139 S. Ct. 634, 637 (2019) (statement of Justice Alito concerning the denial of certiorari, joined by Justices Thomas, Gorsuch, and Kavanaugh). But “[o]verruling precedent is never a small matter.” Kimble v. Marvel Ent., LLC, 135 S. Ct. 2401, 2409 (2015). “[E]ven in constitutional cases, a departure from precedent ‘demands special justification.’” Gamble v. United States, 139 S. Ct. 1960, 1969 (2019) (citation omitted). That is particularly true where a party asks this Court “to overrule not a single case, but a long line of precedents—each one reaffirming the rest” and, in this instance, going back several decades. Kisor v. Wilkie, 139 S. Ct. 2400, 2422 (2019). Here, none of the traditional stare decisis factors support overturning or modifying Smith.
V. The decision below correctly applied this Court’s unconstitutional-conditions precedents.
In addition to its claim of religious hostility, CSS also asks this Court to grant review to consider its novel unconstitutional-conditions theory. Pet. 34-38. It contends that the City has violated its First Amendment rights by
7 Several states have submitted an amicus brief nominally in support of CSS. Br. of Texas, et al. But their brief does not actually support CSS’s position. It argues not that the Free Exercise Clause requires a modified contract here, but rather that the Establishment Clause does not prohibit it. Id. at 3. That is not a question CSS presents in its petition. The states’ apparent unwillingness to support CSS’s free-exercise claim speaks volumes.

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requiring that all who voluntarily contract with the City— to provide City services to City residents with City funds—comply with contractual requirements defining the key terms of the relevant City program (namely, which City residents must be served). CSS does not allege a circuit split on this question, and the only court of appeals decision to address a similar question in an analogous context is fully consistent with the decision below. See Teen Ranch, Inc. v. Udow, 479 F.3d 403, 410 (6th Cir. 2007) (rejecting free-speech claim of religious organization that voluntarily contracted with the government to provide taxpayer-funded residential-treatment programs for troubled teenagers).
The Third Circuit’s decision is correct and further review is unwarranted. As the court noted, the City does not seek to control or influence contractors’ speech or operations beyond the confines of their implementation of the City’s program. Indeed, “the City is willing to work with organizations that do not approve of gay marriage, as its continued relationship with Bethany Christian, its continued relationship with CSS, … and its willingness to resume working with CSS as a foster care agency attest.” Pet. App. 42a. The City “simply insists that CSS abide by public rules of non-discrimination in the performance of its public function under any foster-care contract.” Id. So any “speech here only occurs because CSS has chosen to partner with the government to help provide what is essentially a public service.” Id. As a result, “the condition pertains to the program receiving government money,” id., and is therefore permissible under this Court’s cases, see Agency for Int’l Dev., 570 U.S. 205; Rust v. Sullivan, 500 U.S. 173 (1991).
CSS objects that if it “declines the contract, it will be completely excluded from Philadelphia’s foster care

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system.” Pet. 36. As an initial matter, this assertion is not accurate; CSS continues to play a valued role in caring for foster children in Philadelphia through its ongoing relationship with the City. Moreover, it is always true that failure to comply with contract terms governing a public program can lead to exclusion from the program—and it has never been the case that religious entities, or entities with deeply held secular views, are constitutionally entitled to enter into government contracts and then defy any terms to which they object. If CSS’s sweeping constitutional claims were accepted, they would cause mayhem in government contracting.
In suggesting otherwise, CSS erroneously relies on Trinity Lutheran Church of Columbia, Inc. v. Comer, 137 S. Ct. 2012 (2017), where Missouri awarded grants to resurface playgrounds but refused to fund any church or religious organization. Id. at 2017. Trinity Lutheran, whose playground was open to children of all religions, was thus excluded from receiving public funds “simply because of what it is—a church.” Id. at 2023. The Court invalidated the policy on the ground that it disqualified otherwise eligible recipients from receiving “a public benefit solely because of their religious character.” Id. at 2021. But here, the City does no such thing. It has not defunded religious groups; to the contrary, it still funds CSS in many other programs serving abused and neglected children, and continues to fund other religious groups for this very foster-care program. Rather, the City stopped paying one contractor to perform a particular public service—the evaluation and certification of prospective foster parents—because of that contractor’s refusal to perform a key term in its contract governing who may receive that service, without reference to whether that contractor’s refusal is based on secular or religious reasons.

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CSS also asserts that its rights are being violated because it is not otherwise able “to engage in the protected activity.” Pet. 37. That is incorrect. CSS remains free to express whatever message it wishes about same-sex marriage and to engage in religious practice consistent with that belief. At bottom, CSS seems to suggest that the “protected activity” is providing taxpayer-funded fostercare services. In other words, CSS implies that it has a constitutional right to engage in foster-care services, and that the Commonwealth of Pennsylvania and the City have violated that right by making foster-care services a governmental function and attaching terms to contracts with private entities who wish to help administer that governmental function. But absent its contract with the City, CSS has no preexisting right to determine the fate of Philadelphia’s abused and neglected children, whose care is entrusted by law to the government—even if doing so is consistent with or steeped in its religious ministry.
The care of abused and neglected children in Pennsylvania is a public function. If CSS wishes to voluntarily contract with the City to assist in the discharge of that public function, the City does not burden CSS’s First Amendment rights by requiring it to comply with key requirements bearing directly and exclusively on the administration of the City’s programs—including the City’s rules for who receives these taxpayer-funded public services.
CONCLUSION
The petition for a writ of certiorari should be denied.

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MARCEL S. PRATT City Solicitor
DIANA P. CORTES JANE LOVITCH ISTVAN ELEANOR N. EWING BENJAMIN H. FIELD ELISE BRUHL MICHAEL PFAUTZ CITY OF PHILADELPHIA LAW DEPARTMENT 1515 Arch St. Philadelphia, PA 19102 (215) 683-5014

Respectfully submitted,
DEEPAK GUPTA Counsel of Record
JONATHAN E. TAYLOR LARK TURNER ALEXANDRIA TWINEM GUPTA WESSLER PLLC 1900 L St., NW, Suite 312 Washington, DC 20036 (202) 888-1741 deepak@guptawessler.com
JOSHUA MATZ KAPLAN HECKER & FINK 350 Fifth Ave., Suite 7110 New York, NY 10118 (212) 763-0883

Counsel for Respondents City of Philadelphia, Department of Human Services for the City of Philadelphia, and Philadelphia Commission on Human Relations

October 10, 2019

 
 No. 19-123
In the Supreme Court of the United States
SHARONELL FULTON, ET AL., PETITIONERS v.
CITY OF PHILADELPHIA, PENNSYLVANIA, ET AL.

ON PETITION FOR A WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT

BRIEF FOR THE STATES OF TEXAS, ALABAMA, ARKANSAS, LOUISIANA, MISSOURI, NEBRASKA,
OHIO, OKLAHOMA, WEST VIRGINIA AND THE COMMONWEALTH OF KENTUCKY, BY AND
THROUGH GOVERNOR MATTHEW G. BEVIN, AS AMICI CURIAE IN SUPPORT OF PETITIONERS

KEN PAXTON Attorney General of Texas
JEFFREY C. MATEER First Assistant
Attorney General

KYLE D. HAWKINS Solicitor General
Counsel of Record
OFFICE OF THE ATTORNEY GENERAL
P.O. Box 12548 (MC 059) Austin, Texas 78711-2548 kyle.hawkins@
texasattorneygeneral.gov (512) 936-1700

TABLE OF CONTENTS
Page Table of authorities ............................................................ II Interest of amici curiae........................................................1 Summary of argument.........................................................2 Argument ..............................................................................3
I. The Court Should Clarify Whether States Must Require Religiously Affiliated Foster Care Groups to Set Aside Their Religious Beliefs in Order to Participate in the Foster Care System. ..........................................................3 A. Ten States expressly extend religious liberty protections to child-placing agencies, opening themselves to suits by groups advocating LGBTQ interests and the separation of church and state......3 B. Other States offer no protection to faith-based child-placing agencies, opening themselves to suits by religious groups. ...........................................................7
II. Religious Child-Placing Agencies Play a Vital Role in Expanding the Options Available to Children Who Need Homes. .........10
Conclusion ...........................................................................14
(I)

II
TABLE OF AUTHORITIES
Page(s)
Cases:
In re M.S., 115 S.W.3d 534 (Tex. 2003).......................................... 10
New Hope Family Services, Inc. v. Poole, 5:18-CV-1419, 2019 WL 2138355 (N.D.N.Y. May 16, 2019) .................................................................. 9
Constitutional Provisions and Statutes:
Tex. Const. art. 1 § 6 ............................................................ 6 Ala. Code
§ 26-10D-3(1) ................................................................... 5 § 26-10D-4(1)................................................................4-5 § 26-10D-4(1–2) ............................................................... 5 § 26-10D-4(2) ................................................................... 5 § 26-10D-5(a) ................................................................... 5 Kan. Stat. § 60-5322(b–c) ................................................................. 5 § 60-5322(d) ..................................................................... 5 Mich. Comp. Laws § 400.5a ............................................................................ 5 § 710.23g .......................................................................... 5 § 722.124e ........................................................................ 8 § 722.124e(1).................................................................... 5 § 722.124e(2-3) ................................................................ 5 § 722.124e(3).................................................................... 5 § 722.124e(7)(a) ............................................................... 5 2015 Mich. Legis. Serv. P.A. 53 (H.B. 4188)...................... 8

III
Constitutional Provisions and Statutes—Continued:
Miss. Code § 11-62-3 .......................................................................... 5 § 11-62-5(2) ...................................................................... 5 § 11-62-7(1)(c-d) .............................................................. 5 § 11-62-7(2) ...................................................................... 5 § 11-62-15......................................................................... 5
N.D. Cent. Code § 50-12-03......................................................................... 5 § 50-12-07.1...................................................................... 5
S.D. Codified Laws § 26-6-38 .......................................................................... 5 § 26-6-39 .......................................................................... 5 § 26-6-40 .......................................................................... 5 § 26-6-46 .......................................................................... 5
Tex. Fam. Code § 153.002 ........................................................................ 10 § 161.001(b)(2)............................................................... 10
Tex. Hum. Res. Code §§ 45.001–.010 ................................................................. 4 §§ 45.002(1)...................................................................... 5 § 45.002(1)(A) .................................................................. 5 § 45.004 ............................................................................ 5 § 45.004(1)........................................................................ 4 § 45.005(a)........................................................................ 4 § 45.005(b) ....................................................................... 4 § 45.005(c)........................................................................ 4 § 45.009 ............................................................................ 5
Va. Code § 63.2-1709.3(A–B).......................................................... 5 § 63.2-1709.3(C) .............................................................. 5

IV
Miscellaneous:
Complaint, Buck v. Gordon, No. 19-cv-00286 (W.D. Mich. July 31, 2019)............................................. 9
Complaint, Dumont v. Gordon, No. 2:17-cv-13080 (E.D. Mich.) (filed Sept. 20, 2017) ............................................... 7, 8, 9
Complaint, Rogers v. U.S. Dep’t of Health & Human Servs., No. 6:19-cv-01567 (D. S.C.) (filed May 30, 2019) ......... 7
Motion for Preliminary Injunction, Catholic Charities West Michigan v. Michigan Dep’t of Health & Human Servs., No. 2:19-CV-11661 (E.D. Mich. June 26, 2019) ........... 8
S.B. 1140 § 1(A–B), 56th Leg., Reg. Sess. (Okla. 2018) ..................................................................... 5
S.B. 1140 § 1(C), 56th Leg., Reg. Sess. (Okla. 2018) ..................................................................... 5
S.C. Exec. Order 2018-12 .................................................... 5

INTEREST OF AMICI CURIAE
Amici are the States of Texas, Alabama, Arkansas, Louisiana, Missouri, Nebraska, Ohio, Oklahoma, West Virginia and the Commonwealth of Kentucky, by and through Governor Matthew G. Bevin. The States provide child welfare services through their state-wide agencies and local municipalities. To better provide those services, States often contract with private entities, including child-placement agencies. Some of the private agencies States partner with have religious missions. At least ten States have enacted laws to protect the ability of religious agencies to function according to their beliefs while still providing ample services to children in state care and potential parents willing to care for them.
This case implicates the contractual relationships between States and religiously oriented foster care organizations. Amici urge the Court to grant certiorari to clarify the permissible contours of these relationships.1
1 Pursuant to Supreme Court Rule 37.2, Amici state that no counsel for any party authored this brief in whole or in part, and no person or entity other than Amici contributed monetarily to the preparation or submission of this brief. Counsel of record received timely notice of the intent to file this brief.
(1)

2
SUMMARY OF ARGUMENT
Religious entities have been involved in the provision of foster-care services longer than many States have existed. Due in part to that experience, many States wish to avail themselves of the services of faith-based childplacing entities. At least ten States have enacted laws expressly protecting the religious liberty of faith-based child-placing agencies to operate according to those beliefs. These laws prohibit state and local government entities from refusing to work with those agencies because of their beliefs.
But in partnering with religious agencies, States often find themselves attacked on two fronts. On the one hand, when a State contracts with a group whose faith limits its ability to place children in certain home environments, the State is sued by groups advocating for LGBTQ interests and separation of church and state. On the other, when a State precludes faith-based organizations from contracting with the governmental entities unless they violate their religious beliefs, then the State subjects itself to suits by advocates for religious freedom. This Court’s intervention is necessary to bring clarity to the law and allow States to utilize the valuable resource of faith-based child-placing agencies.

3
ARGUMENT
I. The Court Should Clarify Whether States Must Require Religiously Affiliated Foster Care Groups to Set Aside Their Religious Beliefs in Order to Participate in the Foster Care System.
The Petition gives the Court the opportunity to resolve a pressing question: whether States must require religiously affiliated foster care groups to set aside their religious beliefs in order to participate in the State’s foster care system.
When States protect the religious liberty of fostercare groups, they face lawsuits from LGBTQ organizations. Conversely, when they exclude such groups—or require them to disregard their sincerely held religious beliefs—they face lawsuits from advocates for religious liberty. This dilemma cries out for resolution.
A. Ten States expressly extend religious liberty protections to child-placing agencies, opening themselves to suits by groups advocating LGBTQ interests and the separation of church and state.
1. States routinely contract with religiously affiliated agencies to assist with foster-care placements, and those agencies have historically provided invaluable services to the States and their most vulnerable residents. See Part II, infra. In recent years, several States have enacted laws to protect the religious liberty of child-placing agencies who work under state government contracts to help find safe, loving homes for children.
For example, in 2017, Texas enacted House Bill 3859, which protects the religious liberty of religious child-

4
placing agencies and prohibits the State from granting or denying funding to such organizations because of their religious beliefs. See Tex. Hum. Res. Code §§ 45.001– .010. House Bill 3859 prohibits government entities in Texas from discriminating or taking adverse action against a child-placing agency if that provider has declined or will decline to provide, facilitate, or refer a person for child welfare services that conflict with the provider’s sincerely held religious beliefs. Id. § 45.004(1); see also id. § 45.005(a) (“child welfare services provider may not be required to provide any service that conflicts with the provider’s sincerely held religious beliefs”).
To both protect the religious liberty of child-placing agencies and also maximize potential homes for children in need, Texas law ensures that there is a secondary child-placing agency in the same area able to provide the same service if a religious agency cannot. Id. § 45.005(b). In addition, a religious agency unable to serve someone because of its religious beliefs must provide the person seeking services with a list of other providers or refer the person to another provider, to Texas DFPS, or to another agency who can refer the person to an appropriate provider. Id. § 45.005(c). This increases the diversity of possible child-placing agencies helping the State find homes for children while protecting the ability of all interested individuals or couples to find an agency who will work with them.
Other States provide similar protections to religious child welfare providers. Five States, including Texas, expressly prohibit state agencies or local governments from discriminating against child-placing agencies that operate according to religious or moral beliefs. See Ala.

5
Code § 26-10D-4(1); Miss. Code § 11-62-5(2); S.C. Exec. Order 2018-12; S.D. Codified Laws § 26-6-39; Tex. Hum. Res. Code § 45.004. Six states declare, as a matter of public policy, broad protections for child-placing agencies to act according to their religious beliefs. See Ala. Code § 26-10D-4(2); Mich. Comp. Laws § 722.124e(1); Miss. Code §§ 11-62-3, 11-62-15; S.C. Exec. Order 2018-12; S.D. Codified Laws § 26-6-46; Tex. Hum. Res. Code § 45.009.
At least ten States prohibit their administrative agencies or local governments from requiring child-placing groups to engage in practices that violate their religious or moral beliefs or denying license applications or renewals for child-placing groups because of their religious beliefs. See Ala. Code §§ 26-10D-4(1–2), 26-10D3(1), 26-10D-5(a); Kan. Stat. § 60-5322(b–c); Mich. Comp. Laws §§ 722.124e(2–3) & (7)(a), 710.23g, 400.5a; Miss. Code §§ 11-62-5(2), 11-62-7(2); N.D. Cent. Code §§ 50-1203, 50-12-07.1; S.B. 1140 § 1(A–B), 56th Leg., Reg. Sess. (Okla. 2018); S.C. Exec. Order 2018-12; S.D. Codified Laws §§ 26-6-38, 26-6-39, 26-6-40; Tex. Hum. Res. Code §§ 45.002(1), 45.004; Va. Code § 63.2-1709.3(A–B).
Relatedly, nine States prohibit government entities from denying or canceling a grant to a child-placing agency due to the agency’s actions undertaken for religious or moral purposes. See Kan. Stat. § 60-5322(d); Mich. Comp. Laws §§ 722.124e(3), (7)(a), 710.23g, 400.5a; Miss. Code § 11-62-7(1)(c-d); N.D. Cent. Code § 50-1207.1; S.B. 1140 § 1(C), 56th Leg., Reg. Sess. (Okla. 2018); S.C. Exec. Order 2018-12; S.D. Codified Laws § 26-6-39; Tex. Hum. Res. Code §§ 45.002(1)(A), 45.004; Va. Code § 63.2-1709.3(C).

6
These laws advance several important interests. In particular, they play an important role in ensuring diversity of foster-care placements. Some foster groups derive their motivation from a religious calling. Others simply feel a desire to help children. Whatever their reasons, States believe that the foster care system operates better when they partner with a broad constellation of organizations.
That diversity also better enables States to serve people of faith. For example, some parents may prefer to see their children placed with a group that shares their religious beliefs. The availability of a multitude of diverse adoption agencies helps the State serve its diverse array of residents.
Furthermore, faith-based foster groups like Catholic Social Services draw from a wealth of experience. Some religious groups have been caring for poor and abandoned children longer than many States have existed. State foster care systems work better when they court— rather than shun—that lengthy experience and expertise.
Finally, partnering with religiously affiliated foster groups allows the States to demonstrate their commitment to free exercise. The Texas Constitution’s Freedom of Worship Clause, for example, provides that “[n]o human authority ought, in any case whatever, to control or interfere with the rights of conscience in matters of religion.” Tex. Const. art. 1 sec. 6. To require faith-based groups to disregard their beliefs would be inconsistent with the States’ commitment to religious liberty.
2. Despite the compelling reasons to partner with— and respect the beliefs of—faith-based foster services,

7
States who engage in these partnerships face legal challenges from activist groups pressing LGBTQ interests and separation of church and state. For instance, various advocacy groups are currently suing South Carolina officials on behalf of a lesbian couple whom evangelical foster care agency Miracle Hill Ministries declined to endorse for religious reasons. See Complaint, Rogers v. U.S. Dep’t of Health & Human Servs., No. 6:19-cv-01567 (D. S.C.) (filed May 30, 2019). The suit targets various state officials merely for working with a religious entity who chose to follow the tenets of its faith and only advocate for individuals or couples who shared those beliefs. Id.
Likewise, when Michigan passed legislation protecting religious child-placing agencies from having to endorse child placements that violate their religious beliefs, the ACLU sued on behalf of two same-sex couples, alleging that the State’s willingness to contract with faithbased agencies without requiring them to violate their beliefs violated the Establishment and Equal Protection Clauses of the Constitution. See Complaint, Dumont v. Gordon, No. 2:17-cv-13080 (E.D. Mich.) (filed Sept. 20, 2017).
B. Other States offer no protection to faith-based child-placing agencies, opening themselves to suits by religious groups.
Some States, like Pennsylvania in this case, provide no formal protections to religious child-placing agencies, and permit cities like Philadelphia to blacklist any faithbased organization whose beliefs limit the individuals they can in good faith recommend to the State as foster parents. Other states, like Michigan, have laws on the

8
books which purport to permit faith based agencies to contract with governmental units without violating their beliefs, but have been cowed by lawsuits into cutting off contracts with faith-based child-placing agencies. In both cases, such States have faced legal challenges from defenders of religious liberty. E.g., Motion for Preliminary Injunction, Catholic Charities West Michigan v. Michigan Dep’t of Health & Human Servs., No. 2:19CV-11661 (E.D. Mich. June 26, 2019).
Michigan’s relationship with religious child-placing agencies is emblematic of the tenuous position in which the States find themselves on this issue. As referenced above, in 2015, Michigan passed legislation protecting a faith-based child-placing agency from being forced to violate its beliefs in order to contract with state agencies. 2015 Mich. Legis. Serv. P.A. 53 (H.B. 4188); Mich. Comp. Laws § 722.124e. The ACLU subsequently sued the Michigan Department of Health and Human Services on behalf of two same-sex couples, alleging that the State’s willingness to contract with faith-based agencies who cannot facilitate certain child placements for religious reasons violated the Establishment and Equal Protection clauses of the Constitution. See Complaint, Dumont v. Gordon, No. 2:17-cv-13080 (E.D. Mich.).
Michigan chose to settle the claim, entering into an agreement that, inter alia, required the Department to include a “non-discrimination provision” in all Department contracts for child placement services, forbidding any child placing agency from “turning away or referring to another contracted CPA an otherwise potentially qualified LGBTQ individual or same-sex couple that may be a suitable foster or adoptive family.” Stipulation of

9
Voluntary Dismissal with Prejudice at 9, Dumont v. Gordon, No. 2:17-cv-13080 (E.D. Mich. March 22, 2019), ECF No. 82; see also Buck v. Gordon, No. 19-cv-00286, at *5 (W.D. Mich. July 31, 2019) (order denying ACLU clients’ motion to intervene in Buck based on the settlement in Dumont).
But after implementing the Dumont settlement agreement, the State was sued again—this time by St. Vincent Catholic Charities and prospective foster parents affiliated with them—on the grounds that the Department’s new position violated the Free Speech, Free Exercise, and Equal Protection clauses of the Constitution. See Complaint, Buck v. Gordon, No. 19-CV-00286 (W.D. Mich.) (filed April 15, 2019).
Michigan and Pennsylvania are not the only states currently being sued for requiring child-placing agencies to violate their religious beliefs as a precondition to engaging in adoptive services. For instance, the State Office of Children and Family Services for New York threatened to shut down all adoption services of the nonprofit religious child-placing agency New Hope Family Services unless it revised its religious policy of only placing children with a married mother and father. New Hope Family Services, Inc. v. Poole, 5:18-CV-1419, 2019 WL 2138355 (N.D.N.Y. May 16, 2019). The District Court’s dismissal of the First and Fourteenth Amendment claims in that case is currently on appeal in the United States Court of Appeals for the Second Circuit. Id., appeal docketed, No. 19-1715 (2d Cir. June 11, 2019).
This Court’s review and guidance is necessary to alleviate the difficult situation in which the States find themselves, where they are forced to absorb the burdens

10
of litigation no matter how they relate to faith-based child-placing agencies.
II. Religious Child-Placing Agencies Play a Vital Role in Expanding the Options Available to Children Who Need Homes.
When considering child-custody issues, nearly every State in the Union pledges to act in the best interest of the child. To implement this standard, several States have recognized that promoting a diversity of child-placing agencies, religious and nonreligious, maximizes the placement opportunities for children. And faith-based organizations make good partners because they often have a religious duty to help children. Texas is a good example.
Like most States, Texas recognizes the “best interest of the child” as the “primary consideration” for courts when determining parentage, possession, and access to the child. Tex. Fam. Code § 153.002; see also id. § 161.001(b)(2). Texas’s “fundamental interest in parental-rights termination cases is to protect the best interest of the child.” In re M.S., 115 S.W.3d 534, 548 (Tex. 2003). In Texas, the best interest of the child standard “is aligned with another of the child’s interests—an interest in a final decision on termination so that adoption to a stable home or return to the parents is not unduly prolonged.” Id.
The Texas Department of Family and Protective Services (“DFPS”), through its Child Protective Services division (“CPS”), cares for children and families and seeks permanency for children in substitute care. At the end of fiscal year 2017, CPS placed over 48,000 children in substitute care (including foster care), and out of more than

11
7,000 children in CPS custody awaiting adoption, Texas DFPS placed over 5,000 in adoptive homes.
Texas DFPS works with private child-placing agencies to find loving homes for children in the foster care system. These agencies train prospective foster parents, find homes for foster children, and provide continuing services to foster parents after placement. Several of the child-placing agencies that work with Texas DFPS are faith-based organizations. Many are not. For Texas, as with many states, the paramount concern is placing children in safe, loving homes. Working with both religious and nonreligious child-placing agencies ensures that Texas finds as many possible placement opportunities for children as possible.
To that end, Texas operates several initiatives intended to engage the faith community in the child welfare system. One initiative, called Congregations Helping in Love and Dedication (“CHILD”), encourages faith partners across Texas to join with Texas DFPS to help provide support, training, and resources to current and potential adoptive and foster parents. Part of CHILD is the Network of Nurture Initiative, which seeks loving homes for children in foster care, educates parents about these opportunities, and provides continuing support for children in foster care. The purpose of the initiative is to ask faith communities to do more to support the children and families in Texas’s child welfare system. The initiative is open to religious and nonreligious entities.
Another program of Texas DFPS is the One Church, One Child adoption recruitment program designed to partner with minority communities. The program works primarily through churches with predominantly

12
minority congregations to identify adoptive families and single parents for children in need of homes. It informs church congregations about children awaiting adoption, identifies families willing to adopt, educates the community about the need for adoptive homes and adoption procedures, provides support services to these families, and, ultimately, decreases the amount of time children are in foster care, waiting to be placed permanently with families.
Aside from these specific programs designed to engage the faith community with foster care and adoptions, some child-placing agencies that already work with Texas are faith-based organizations. The availability of these faith-based organizations diversifies the family placement options available to children, which increases the chances for good placement outcomes. Some of these faith-based agencies operate under certain religious beliefs or requirements. But even if an individual parent or couple disagrees with the agency’s religious beliefs or requirements, that individual or couple may use any number of other child-placing agencies in Texas to foster or adopt a child. In other words, it is up to the person who wants to be a foster parent to find the right organization he or she wants to work with. Texas’s network of childplacing agencies serves all children and potential families. The same is true in other States.
Many States conclude that working with a diverse coalition of child-placing agencies provides better services to children in foster care and the potential parents eager to care for them. Religious child-placing agencies add to this diversity, and this Court should clarify that States may enlist their assistance without coercing them to

13
violate their religious tenets. For these reasons, the Court should grant the petition for a writ of certiorari, reverse the Third Circuit’s judgment, and remand the case for issuance of a preliminary injunction.

14
CONCLUSION
The petition for a writ of certiorari should be granted. Respectfully submitted.

STEVE MARSHALL Attorney General of Alabama

KEN PAXTON Attorney General of Texas

LESLIE RUTLEDGE Attorney General of Arkansas
M. STEPHEN PITT General Counsel to Governor Matthew G. Bevin, Governor of Kentucky
JEFF LANDRY Attorney General of Louisiana
ERIC S. SCHMITT Attorney General of Missouri
DOUG PETERSON Attorney General of Nebraska

JEFFREY C. MATEER First Assistant
Attorney General
KYLE D. HAWKINS Solicitor General
Counsel of Record
OFFICE OF THE ATTORNEY GENERAL
P.O. Box 12548 (MC 059) Austin, Texas 78711-2548 kyle.hawkins@
texasattorneygeneral.gov (512) 936-1700

DAVE YOST Attorney General of Ohio

MIKE HUNTER Attorney General of Oklahoma

PATRICK MORRISEY Attorney General of West Virginia

AUGUST 2019

 
 Fulton v. City of Philadelphia, Pennsylvania, 140 S.Ct. 1104 (Mem) (2020) 206 L.Ed.2d 177, 20 Cal. Daily Op. Serv. 1378

140 S.Ct. 1104 Supreme Court of the United States.
Sharonell FULTON, et al., Petitioners, v.
CITY OF PHILADELPHIA, PENNSYLVANIA, et al.
No. 19-123 |
Feb. 24, 2020

Opinion
Petition for writ of certiorari to the United States Court of Appeals for the Third Circuit granted.
All Citations 140 S.Ct. 1104 (Mem), 206 L.Ed.2d 177, 20 Cal. Daily Op. Serv. 1378