## Facts

- The City of Philadelphia contracted with private agencies, including Catholic Social Services (CSS), to certify prospective caregiving families for children placed in out-of-home care.
- CSS worked with the City for roughly 50 years and, consistent with its religious beliefs about marriage, would not certify same-sex married couples or unmarried couples as caregiving families.
- After learning of CSS’s certification policy, the City informed CSS it would no longer refer children to CSS and would not continue working with CSS unless CSS agreed to certify same-sex married couples.
- The City relied on a nondiscrimination requirement tied to sexual orientation in the City’s standard contract materials and related City policy.
- The nondiscrimination requirement included an exceptions provision: the Commissioner of Human Services could grant an exception, and the Commissioner had full discretion whether to do so.
- The City contended that it had interests in increasing the number of available caregiving families, avoiding liability associated with discriminatory conduct, and advancing equal treatment.
- The City argued that the discretionary exception had never been used.
- CSS and certain caregiving parents associated with CSS sued the City in federal district court, asserting (among other claims) violations of the Free Exercise Clause and Free Speech Clause of the First Amendment, and sought preliminary injunctive relief.
- The district court ruled for the City and denied the requested preliminary injunction; the Third Circuit affirmed.
- The Supreme Court granted review.

## Issues

1. Whether Philadelphia violated the Free Exercise Clause by refusing to contract with CSS unless CSS agreed to certify same-sex married couples.
2. Whether Philadelphia’s nondiscrimination requirement was “generally applicable” when it allowed the Commissioner discretionary, individualized exceptions.
3. If strict scrutiny applied, whether Philadelphia showed a compelling interest and narrow tailoring for denying CSS a religious exemption.
4. Whether the Court needed to overrule *Employment Division v. Smith* to resolve the Free Exercise claim.

## Decision

- The Supreme Court unanimously reversed and remanded.
- The Court held that Philadelphia’s refusal to continue referrals and contracting with CSS, absent CSS’s agreement to certify same-sex married couples, violated the Free Exercise Clause on the record presented.
- Because the City’s contractual framework allowed discretionary exceptions, the nondiscrimination requirement was not generally applicable; therefore, strict scrutiny applied.
- Philadelphia did not satisfy strict scrutiny as applied to CSS: it did not show a compelling interest in denying CSS an exemption in these circumstances, nor that refusing an exemption was narrowly tailored.
- The Court resolved the case without overruling *Employment Division v. Smith*, because the presence of a discretionary exemptions mechanism took the case outside *Smith*’s rule for neutral and generally applicable requirements.

## Legal Principles

- Under *Employment Division v. Smith*, a neutral and generally applicable rule that incidentally burdens religious exercise ordinarily receives deferential review; a rule that is not neutral or not generally applicable triggers strict scrutiny.
- A rule is not generally applicable when it permits individualized, discretionary exemptions, because that structure allows officials to decide case by case which reasons justify noncompliance.
- When strict scrutiny applies, the government must show a compelling interest in denying the requested religious exemption in the specific context and must show narrow tailoring (least restrictive means).
- The existence of an unused discretionary-exception provision can still defeat general applicability; the relevant point is that the government retained the authority to make exceptions but refused to extend one for religious exercise.

## Conclusion

Philadelphia’s nondiscrimination condition, as enforced against CSS, was subject to strict scrutiny because the City reserved discretion to grant exceptions, and the City did not justify denying CSS a religious exemption under that demanding standard; the Supreme Court therefore reversed the Third Circuit and remanded without overruling *Smith*.


Fulton v. City of Philadelphia, 593 U.S. 522, 141 S. Ct. 1868, 210 L. Ed. 2d 137 (2021)