On November 4, the Supreme Court will hear argument in Fulton v. Philadelphia. In March 2018, the City of Philadelphia barred Catholic Social Services (CSS) from placing children in foster homes because of its policy of not licensing same-sex couples to be foster parents. CSS sued the City of Philadelphia, asking the court to order the city to renew its contract. CSS argued that its right to free exercise of religion and free speech entitled it to reject qualified same-sex couples because they were same-sex couples, rather than for any reason related to their qualifications to care for children.

The district court denied CSS’s motion for a preliminary injunction, and the Third Circuit affirmed, finding that the City’s non-discrimination policy was a neutral, generally applicable law and that CSS had not demonstrated that the City targeted CSS for its religious beliefs or was motivated by ill will against its religion. CSS claims that it exercises its religion in caring for foster children and acting in accordance with its religious beliefs in the process. It claims that it cannot make foster care placements which are inconsistent with its beliefs about sex and marriage. If a same sex couple approached CSS to be foster parents, they would refer the couple to another agency. Perhaps not surprisingly, no same sex couple has approached CSS for be a foster parent.

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