PRECEDENTIAL

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

________________

No. 18-2574

_

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.)

 ________________

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

_
2

Argued November 6, 2018

Before: AMBRO, SCIRICA, and RENDELL, Circuit Judges

(Opinion filed: April 22, 2019)

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

Marvel S. Bratt

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

Elisa Bruhl

Benjamin H. Field
3

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
4

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

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, 
5

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

Catherin 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
6

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, 
7

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, 
8

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
9

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 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, 
10

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. Martz

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
11

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
12

_

OPINION OF THE COURT

_

AMBRO, Circuit Judge

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 samesex 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 

 

1 That being said, District Judge Tucker commented that she 

“would prefer that the [p]arties seek . . . some compromise to 
13

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 

(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 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 

 

their current dispute without court intervention.” Id. at 667. 

We agree, especially given the long and constructive 

relationship between the parties. 
14

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 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 
15

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 
16

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 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.

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

 

 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.
17

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 
18

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 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 
19

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 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 
20

Paul,3 and Toni Lynn Simms-Busch—were also listed as 

plaintiffs.4

 On June 5, 2018, 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 

 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 (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 thirdparty standing are not a matter of our constitutional jurisdiction 

under Article III but rather “stem from a salutary ‘rule of selfrestraint.’” Craig v. Boren, 429 U.S. 190, 193 (1976) (quoting

Barrows v. Jackson, 346 U.S. 249, 255 (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.
21

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., No. 2:18-cv-02075-

PBT (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 SimmsBusch, Paul, and Fulton, as well as from Amato,5 Deputy 

Commissioner of Human Services Kimberly Ali, 

Commissioner Figueroa, and Frank Cervone, a child advocate 

 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.” 
22

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, No. 18A-118, 2018 WL 4139298 (U.S. Aug. 30, 

2018).

II. Jurisdiction and Standard of Review

 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.
23

The District Court had jurisdiction under 28 U.S.C. 

§ 1331. Our jurisdiction to 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).

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 (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
24

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 (1940). Per Employment 

Division v. Smith, 494 U.S. 872, 877 (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.

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 (quoting United States v. Lee, 455 

U.S. 252, 263 n.3 (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 from obedience to a general law not aimed at the 
25

promotion or restriction of religious beliefs.” Id. at 879 

(quoting Minersville Sch. Dist. Bd. of Educ. v. Gobitis, 310 

U.S. 586, 594–95 (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, 138 S. Ct. 1719, 1727 (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 (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 

 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 
26

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 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 antidiscrimination clause is not permissible under Smith, CSS 

invokes cases where courts have found ostensibly neutral 

 

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 (1995). But the 

injunctions in those cases merely forbade government entities 

from enforcing their express affirmative action policies going 

forward. See id. at 210. We have some 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.
27

government action unconstitutional because it was motivated 

by ill will toward a specific religious group or otherwise 

impermissibly targeted religious conduct. See, e.g., 

Masterpiece Cakeshop, 138 S. Ct. 1719; Church of the Lukumi 

Babalu Aye, Inc. v. City of Hialeah, 508 U.S. 520 (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. 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. 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.
28

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. 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. 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. 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.

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 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 

 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.
29

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 antidiscrimination 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). 

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, 
30

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 

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 
31

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.

 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.
32

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, 

CSS first points to the City Council’s resolution authorizing 

the Commission on Human Relations’ inquiry, which stated 

that “Philadelphia has laws 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 wellestablished legal principle that religious belief will not excuse 

compliance with general civil rights laws. Unlike the 

commissioner in Masterpiece who suggested that religious 
33

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 
34

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 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 
35

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 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 
36

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 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, 137 S. Ct. 2012 (2017), in which the Supreme Court 

held unconstitutional rules excluding religious organizations 

 

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-multiracialadoption-identity.html (collecting scholarly articles). 
37

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 noncompliance 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.
38

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 (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 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 (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 
39

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 (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 
40

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 (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 patients not only abortion services but also 

counseling or information about abortion. Id. at 193–200. 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 (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 
41

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 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 samesex 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.
42

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 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 (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 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 
43

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.

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 

adherence to the person’s religious faith[;] 
44

(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 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 

 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
45

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 (“It is no more appropriate for 

judges to determine the ‘centrality’ of religious beliefs . . . in 

 

(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.”).
46

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 (1984). And mandating compliance is the least 

restrictive means of pursuing that interest. See Hobby Lobby, 

573 U.S. at 733 (“The Government has a compelling 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 

 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 
47

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 (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 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

 

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.
48

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. 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 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 
49

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 selfprofessed “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 
50

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.