August 21, 2020

ABA asks Supreme Court to uphold non-bias clause in faith-based contracting case

CHICAGO, Aug. 21, 2020 — The American Bar Association filed an amicus brief today with the U.S. Supreme Court, asking the justices to affirm a federal circuit court decision that the city of Philadelphia did not violate the First Amendment rights of a faith-based agency by conditioning the agency’s ability to contract to perform public foster care services on its compliance with the city’s non-discrimination policies.

At issue is a March 2018 decision by Philadelphia to discontinue referring cases to Catholic Social Services as a city contractor after learning that the agency refused to place children in foster homes of same-sex couples. The agency sued, arguing that its right to free exercise of religion and free speech entitled it to reject qualified same-sex couples solely on that basis, rather than for any reason related to their qualifications to care for children.

Subsequently, the U.S. Circuit Court of Appeals for the Third Circuit in Philadelphia upheld the decision of the district court denying the agency’s challenge to the city’s order. Nationwide, federal appeals courts have split on the legal standard to be used in deciding similar types of religious discrimination cases. The Supreme Court has set oral arguments for the case on Nov. 4.

In its brief, the ABA said the city’s decision to enforce its non-discrimination policy furthers the core goals of the city’s foster care program and does not present a blanket prohibition against religious agencies contracting to perform public services. It said prior U.S. Supreme Court cases allow the city to adopt non-discrimination policies consistent with the U.S. Constitution.

The brief also warned that allowing Catholic Social Services to prevail in the case could begin a slippery legal slope where a faith-based contractor, citing religious principles, could exempt itself from other non-discrimination policies when contracting to perform public services.

The brief in Sharonell Fulton et al v. City of Philadelphia et al is available here. The law firm of Ropes & Gray LLP filed the brief pro bono on behalf of the ABA.

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