On Wednesday, November 4, 2020, the Supreme Court considered the Sharonell Fulton et al. v City of Philadelphia. A case involving a local Catholic Charities agency claiming that the city of Philadelphia is unfairly targeting them due to the city’s non-discrimination policy regarding child welfare placements and recruitments. 


In 2018 a report in the Philadelphia Inquirer had determined that some faith-based agencies were violating the non-discrimination requirements the city had in place when it came to the placement of children. Catholic Charities had not been initially covered in the reporting, but in a review of the child welfare agency’s practices, the city determined that that agency was not in compliance with non-discrimination requirements and pulled their contract. After the Philadelphia Inquirer story, Bethany Christian Services, which had been the original focus of the article, came to a mutual agreement with Philadelphia, and they continue in their child welfare services in the city.


Catholic Charities of Philadelphia said they were a victim of religious discrimination, arguing they were entitled to enter into such contracts using the 2017 Supreme Court ruling, Masterpiece Cakeshop v. Colorado Civil Rights Commission, in claiming that it too had been subjected to hostility based on anti-religious prejudice. The 2017 Supreme Court ruling dealt with whether a cake shop had to sell wedding cakes to same-sex couples. 


In 1990, the Supreme Court opinion authored by Justice Antonin Scalia said that when the government has a “generally applicable” law or regulation and enforces that law neutrally, the government’s action is presumptively legitimate even if it has some “incidental” adverse impact on some citizens. Other claims of religious discrimination have been rejected based on that 1990 opinion. 


As in all Supreme Court cases, observers attempted to assess where the Court may come down based on the nine justices’ questions, but it wasn’t clear cut how the court would react. Reports indicate that four justices, Samuel Alito, Clarence Thomas, Brett Kavanaugh, and Neil Gorsuch, seemed negative toward the city’s position. Justices Alito and Thomas are consistently the most conservative members of the Court, while Kavanaugh and Gorsuch are the President’s first two appointees from 2017 and 2018. As reported in media outlets, Justice Alito said, “If we are honest about what’s really going on here … It’s the fact that the city can’t stand the message that Catholic Social Services and the Archdiocese are sending by continuing to adhere to the old-fashioned view about marriage.” Philadelphia’s lawyer responded that the city is now giving Catholic Charities $26 million for other foster care services, including group homes.


Court observers attempted to assess how new Supreme Court Justice Amy Coney Barrett might land on the question, but it was not clear from the questioning. Her questions were judged as more neutral, but observers highlighted that she seemed to draw a line between discrimination based on race. She said, “nobody on this court” would endorse discrimination based on gender, ethnicity, or other characteristics. It is also of note that Justice Barrett clerked for Justice Scalia, the author of the 1990 opinion.  


Chief Justice John Roberts seemed to navigate an in-between position based on his questions with the three remain Court liberals, Justices Stephen Breyer, Elena Kagan, and Sonia Sotomayor, more supportive of the Philadelphia position.   


In Philadelphia, a three-judge panel of the United States Court of Appeals for the Third Circuit ruled against the Catholic Charities agency. As part of that legal dispute, CWLA was part of an Amicus Brief along with Voice for Adoption, The North American Council on Adoptable Children, and the National Association of Social Workers in support of the City of Philadelphia. The same parties have joined in a brief before the Supreme Court on this case. To read the most recent amicus brief filed by CWLA and other groups, go here.