Cleary Gottlieb filed an amicus curiae brief on August 19, 2020, in the U.S. Supreme Court on behalf of three scholars and advocates in the area of religious liberty —Alan Brownstein, Melissa Rogers, and Rabbi David Saperstein—in support of the City of Philadelphia’s (City) policy requiring foster family care agencies to refrain from discrimination against prospective same-sex foster parents.
The case, Fulton v. City of Philadelphia, centers on whether the City, in delegating state authority over the foster care system through contracts between government agencies and foster care providers, can require compliance with a contractual nondiscrimination provision, where such clause is said to conflict with a religiously-affiliated agency’s free exercise of its faith. The amicus brief urges the court to affirm the judgment of the U.S. Court of Appeals for the Third Circuit and rule that Catholic Social Services (CSS), the organization that raised these claims, has no religious liberty right to dictate the terms of a government contract, nor may it choose to exercise delegated government authority in a manner that conflicts with the government’s policies.
Amici argue that religious convictions and beliefs play an important role in society and must be respected but that the Free Exercise Clause does not require the government to delegate legal authority to parties who refuse to comply with neutral, generally applicable nondiscrimination conditions. The brief explains that, in delegating governmental functions to private organizations, the City has an interest in ensuring those organizations comply with its nondiscrimination policies. In applying the same standards to religious and secular organizations alike, the City does not discriminate against religious organizations on the basis of their faith, as CSS suggests.
Cleary partner Carmine Boccuzzi, who led the Cleary team, said, “We were thrilled to work with these scholars in explaining that the Free Exercise clause does not prevent states and cities from administering foster care systems in a fair and nondiscriminatory way that puts the interests of children first.”
An oral argument in Fulton v. City of Philadelphia is scheduled for November 4, 2020.
To view the brief, click here.