Sharonell Fulton v. City of Philadelphia , 922 F.3d 140 ( 2019 )

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
_
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
2
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
3
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,
4
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
5
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,
6
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,
7
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
8
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,
9
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
10
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
11
_
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 same-
sex 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
12
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 non-
discrimination 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.
13
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
14
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
15
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.
16
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
17
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
18
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
19
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 third-
party standing are not a matter of our constitutional jurisdiction
under Article III but rather “stem from a salutary ‘rule of self-
restraint.’” 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.
20
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 Simms-
Busch, 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.”
21
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.
22
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
23
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
24
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
25
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 anti-
discrimination 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.
26
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.
27
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.
28
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 anti-
discrimination 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,
29
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
30
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.
31
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 well-
established legal principle that religious belief will not excuse
compliance with general civil rights laws. Unlike the
commissioner in Masterpiece who suggested that religious
32
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
33
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
34
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
35
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-multiracial-
adoption-identity.html (collecting scholarly articles).
36
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 non-
compliance 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.
37
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
38
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
39
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
40
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 same-
sex 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 non-
discrimination 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.
41
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
42
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[;]
43
(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
44
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.”).
45
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
46
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 non-
discrimination 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.
47
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
48
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 self-
professed “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
49
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.
50