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Sharonell Fulton, et al. v. City of Philadelphia, Pennsylvania, et al.

Paid petition · United States Court of Appeals for the Third Circuit, No. 18-2574 · judgment April 22, 2019

Decided · June 17, 2021
Pre-decision estimate: 7% cert probability (95% interval 5%–12%)

Before the decision, about 1.8× the 4.1% base rate. The model weighted this up for a Third Circuit decision below, a circuit split argued in the petition, and a dissent in the court below (flagged in the petition), and down for a state or local-government respondent.

Questions presented

The City of Philadelphia chose to exclude a religious agency from the City's foster care system unless the agency agreed to act and speak in a manner inconsistent with its sincere religious beliefs about marriage. The Third Circuit upheld that action under Employment Division v. Smith. The questions presented are:

  1. Whether free exercise plaintiffs can only succeed by proving a particular type of discrimination claim-namely that the government would allow the same conduct by someone who held different religious views-as two circuits have held, or whether courts must consider other evidence that a law is not neutral and generally applicable, as six circuits have held?

  2. Whether Employment Division v. Smith should be revisited?

  3. Whether a government violates the First Amendment by conditioning a religious agency's ability to participate in the foster care system on taking actions and making statements that directly contradict the agency's religious beliefs?

Counsel of record

For petitioner
Lori Halstead Windham
Becket

For respondent
Leslie Cooper
American Civil Liberties Union

Case

Conference history
Distributed for 7 conferences

Amicus briefs
6 cert-stage · 81 merits
(79 supporting pet./neither, 2 respondent)

Argument & decision

Argued November 4, 2020 — Lori H. Windham · Neal K. Katyal · Jeffrey L. Fisher. Audio and transcript

Decided June 17, 2021. Opinion by Roberts, C.J..

Proceedings

  1. Jul 19 2021
    JUDGMENT ISSUED.
  2. Jun 17 2021
    Judgment REVERSED and case REMANDED. Roberts, C. J., delivered the opinion of the Court, in which Breyer, Sotomayor, Kagan, Kavanaugh, and Barrett, JJ., joined. Barrett, J., filed a concurring opinion, in which Kavanaugh, J., joined, and in which Breyer, J., joined as to all but the first paragraph. Alito, J., filed an opinion concurring in the judgment, in which Thomas and Gorsuch, JJ., joined. Gorsuch, J., filed an opinion concurring in the judgment, in which Thomas and Alito, JJ., joined.
  3. Nov 04 2020
    Argued. For petitioners: Lori H. Windham, Washington, D. C.; and Hashim M. Mooppan, Counselor to the Solicitor General, Department of Justice, Washington, D. C. (for United States, as amicus curiae.) For City of Philadelphia, et al. respondents: Neal K. Katyal, Washington, D. C. For Support Center for Child Advocates and Family Pride respondents: Jeffrey L. Fisher, Stanford, Cal.
  4. Oct 28 2020
    The record received from the U.S.C.A. 3rd Circuit has been filed electronically (includes sealed material and district court record).
  5. Oct 05 2020
    Motion of the Acting Solicitor General for leave to participate in oral argument as amicus curiae and for divided argument GRANTED.
  6. Oct 05 2020
    Motion for divided argument filed by respondents GRANTED.
  7. Sep 14 2020
    Reply of petitioners Sharonell Fulton, et al. filed. (Distributed)
  8. Sep 02 2020
    CIRCULATED
  9. Aug 31 2020
    Record requested from the U.S.C.A. 3rd Circuit.
  10. Aug 20 2020
    Brief amicus curiae of Lawrence G. Sager filed.
  11. Aug 20 2020
    Brief amicus curiae of American Atheists, Inc. filed.
  12. Aug 20 2020
    Brief amici curiae of GLBTQ Legal Advocates & Defenders and 27 Other LGBTQ Advocacy Groups filed.
  13. Aug 20 2020
    Brief amici curiae of Services and Advocacy for GLBT Elders (SAGE) and 25 Other Organizations Serving Older and Disabled Individuals filed.
  14. Aug 20 2020
    Brief amici curiae of Republican Legislators, Elected Officials, and Leaders filed.
  15. Aug 20 2020
    Brief amicus curiae of The American Bar Association filed.
  16. Aug 20 2020
    Brief amici curiae of The Annie E. Casey Foundation, et al. filed.
  17. Aug 20 2020
    Brief amici curiae of Voice for Adoption, et al. filed.
  18. Aug 20 2020
    Brief amici curiae of Local Governments, Mayors, and U.S. Conference of Mayors as Amici Curiae in Support of Respondents filed.
  19. Aug 20 2020
    Brief amici curiae of First Amendment Scholars filed.
  20. Aug 20 2020
    Brief amici curiae of Lee C. Bollinger, et al. filed.
  21. Aug 20 2020
    Brief amici curiae of Church-State Scholars filed.
  22. Aug 20 2020
    Brief amici curiae of Organizations Serving LGBTQ Youth filed.
  23. Aug 20 2020
    Brief amici curiae of Indian Law Professors filed.
  24. Aug 20 2020
    Brief amici curiae of Former Service Secretaries and the Modern Military Association of America filed.
  25. Aug 20 2020
    Brief amici curiae of Scholars Who Study The LGB Population filed.
  26. Aug 20 2020
    Brief amici curiae of American Psychological Association, et al. filed.
  27. Aug 20 2020
    Brief amici curiae of The Leadership Conference on Civil and Human Rights, et al. filed.
  28. Aug 20 2020
    Brief amici curiae of Prospective Foster Parents Subjected to Religiously Motivated Discrimination by Child-Placement Agencies filed.
  29. Aug 20 2020
    Brief amici curiae of Baptist Joint Committee For Religious Liberty, et al. filed.
  30. Aug 20 2020
    Brief amicus curiae of Commonwealth of Pennsylvania filed.
  31. Aug 20 2020
    Brief amici curiae of Freedom From Religion Foundation, et al. filed.
  32. Aug 20 2020
    Brief amici curiae of Professors Ira C. Lupu, et al. filed.
  33. Aug 20 2020
    Brief amici curiae of Family Equality and PFLAG National filed.
  34. Aug 20 2020
    Brief amicus curiae of New York State Bar Association filed.
  35. Aug 20 2020
    Brief amicus curiae of KidsVoice filed.
  36. Aug 20 2020
    Brief amici curiae of Members of Congress filed.
  37. Aug 20 2020
    Brief amicus curiae of Lutheran Child and Family Services of Illinois filed.
  38. Aug 20 2020
    Brief amicus curiae of Office of the Cook County Public Guardian filed.
  39. Aug 20 2020
    Brief amici curiae of Historians of Child Welfare filed.
  40. Aug 20 2020
    Brief amici curiae of 32 Businesses and Organizations filed.
  41. Aug 20 2020
    Brief amici curiae of President of the House of Deputies of The Episcopal Church, et al. filed.
  42. Aug 20 2020
    Brief amici curiae of ADL (Anti-Defamation League) and Other Organizations filed.
  43. Aug 20 2020
    Brief amici curiae of FosterClub and Former Foster Youth filed.
  44. Aug 20 2020
    Brief amici curiae of Children's Rights, et al. filed.
  45. Aug 20 2020
    Brief amici curiae of Massachusetts, et al. filed.
  46. Aug 20 2020
    Amicus brief of The National Women's Law Center and 35 Additional Organizations not accepted for filing. (August 26, 2020 - Corrected version submitted).
  47. Aug 20 2020
    Brief amici curiae of The National Women's Law Center and 35 Additional Organizations filed.
  48. Aug 20 2020
    Brief amici curiae of National LGBT Bar Assocation, et al. filed.
  49. Aug 20 2020
    Brief amici curiae of The National League of Cities et al. filed.
  50. Aug 19 2020
    SET FOR ARGUMENT on Wednesday, November 4, 2020.
  51. Aug 19 2020
    Brief amici curiae of Scholars of the Constitutional Rights and Interests of Children filed.
  52. Aug 19 2020
    Brief amici curiae of Alan Brownstein, Melissa Rogers, and Rabbi David Saperstein filed.
  53. Aug 19 2020
    Brief amici curiae of Center for the Study of Social Policy and National Center for Lesbian Rights filed.
  54. Aug 19 2020
    Brief amici curiae of Amici Miguel Diaz, CHILD USA, et al. filed.
  55. Aug 19 2020
    Joint motion for divided argument filed by respondents.
  56. Aug 19 2020
    Brief amicus curiae of Government Contracts Professor and Practitioner Richard C. Loeb filed.
  57. Aug 18 2020
    Brief amici curiae of Legal Scholars in Support of Equality in Support of Respondents filed.
  58. Aug 14 2020
    Brief amici curiae of 27 Roman Catholic Lay Persons Supporting Respondents filed.
  59. Aug 14 2020
    Motion of the Acting Solicitor General for leave to participate in oral argument as amicus curiae and for divided argument filed.
  60. Aug 13 2020
    Brief of city respondents City of Philadelphia, Department of Human Services for the City of Philadelphia, Philadelphia Commission on Human Relations filed.
  61. Aug 13 2020
    Supplemental appendix to city respondents brief on the merits filed (to be recovered - August 20, 2020).
  62. Aug 13 2020
    Supplemental appendix to City Respondents' Brief on the Merits filed (8/21/2020).
  63. Aug 13 2020
    Brief of intervenor-respondents Support Center for Child Advocates and Philadelphia Family Pride filed.
  64. Jun 03 2020
    Brief amicus curiae of United States filed.
  65. Jun 03 2020
    Brief amicus curiae of Robertson Center for Constitutional Law filed.
  66. Jun 03 2020
    Brief amici curiae of Concerned Women for America, et al. filed.
  67. Jun 03 2020
    Brief amici curiae of Life Legal Defense Foundation et al. filed.
  68. Jun 03 2020
    Brief amici curiae of Archbishop Jerome E. Listecki and the Roman Catholic Archdiocese of Milwaukee filed.
  69. Jun 03 2020
    Brief amici curiae of James and Gail Blais, General Conference of Seventh-day Adventists filed.
  70. Jun 03 2020
    Brief amici curiae of United States Conference of Catholic Bishops, et al. filed.
  71. Jun 03 2020
    Brief amici curiae of New Hope Family Services, Inc. and Catholic Charities West Michigan filed.
  72. Jun 03 2020
    Brief amicus curiae of Americans for Prosperity Foundation filed.
  73. Jun 03 2020
    Brief amici curiae of Current and Former State Legislators filed.
  74. Jun 03 2020
    Brief amicus curiae of Generation Justice filed.
  75. Jun 03 2020
    Brief amici curiae of The Church of Jesus Christ of Latter-day Saints, et al. filed.
  76. Jun 03 2020
    Brief amici curiae of Catholic Charities of the Diocese of Springfield, Illinois, et al. filed.
  77. Jun 03 2020
    Brief amicus curiae of Former Attorney General Edwin Meese III filed.
  78. Jun 03 2020
    Brief amici curiae of The States of Texas, Alabama, Arkansa, Llouisiana, Missouri, Nebraska, Ohio, Oklahoma, West Virginia and Commonwealth of Kentucky filed.
  79. Jun 03 2020
    Brief amicus curiae of Galen Black filed.
  80. Jun 03 2020
    Brief amici curiae of 76 United States Senators and Members of the House of Representatives filed.
  81. Jun 03 2020
    Brief amici curiae of Coalition for Jewish Values, et al. filed.
  82. Jun 03 2020
    Brief amici curiae of Dorothy Frame, et al. filed.
  83. Jun 03 2020
    Brief amici curiae of National Jewish Commission on Law and Public Affairs, et al. filed.
  84. Jun 03 2020
    Brief amici curiae of Former Foster Children and Foster Parents, et al. filed.
  85. Jun 03 2020
    Brief amici curiae of Christian Legal Society et al. filed.
  86. Jun 03 2020
    Brief amicus curiae of Great Lakes Justice Center filed.
  87. Jun 03 2020
    Brief amici curiae of Fifteen Pennsylvania State Senators filed.
  88. Jun 03 2020
    Brief amici curiae of Council for Christian Colleges and Universities, et al. filed.
  89. Jun 03 2020
    Brief amicus curiae of New Civil Liberties Alliance filed. (Distributed)
  90. Jun 03 2020
    Brief amicus curiae of The Rutherford Institute filed. (Distributed)
  91. Jun 02 2020
    Brief amicus curiae of Center for Constitutional Jurisprudence filed.
  92. Jun 02 2020
    Brief amici curiae of The Bruderhof, United Sikhs, The International Society for Krishna Consciousness (ISKCON), The Islam & Religious Freedom Action Team of the Religious Freedom Institute, and Asma Uddin filed.
  93. Jun 02 2020
    Brief amici curiae of States of Nebraska, Arizona, and Ohio filed.
  94. Jun 02 2020
    Brief amicus curiae of Eugene Volokh in support of neither party filed.
  95. Jun 01 2020
    Brief amicus curiae of National Association of Evangelicals filed.
  96. Jun 01 2020
    Amicus brief of Foundation for Moral Law not accepted for filing. (June 09, 2020 - Duplicate submission.)
  97. Jun 01 2020
    Brief amicus curiae of Foundation for Moral Law filed.
  98. May 28 2020
    Brief amici curiae of The Institute for Faith and Family, et al. filed.
  99. May 27 2020
    Joint appendix (two volumes) filed. (Statement of costs filed.)
  100. May 27 2020
    Brief of petitioners Sharonell Fulton, et al. filed.
  101. May 27 2020
    Brief amicus curiae of Jewish Coalition for Religious Liberty filed.
  102. May 07 2020
    Blanket Consent filed by Respondents, City of Philadelphia, Department of Human Services for the City of Philadelphia, Philadelphia Commission on Human Relations.
  103. Mar 23 2020
    Motion to extend the time to file the briefs on the merits granted. The time to file the joint appendix and petitioners' brief on the merits is extended to and including May 27, 2020. The time to file respondents' briefs on the merits is extended to and including August 13, 2020.
  104. Mar 17 2020
    Motion for an extension of time to file the briefs on the merits filed.
  105. Feb 24 2020
    Petition GRANTED.
  106. Feb 14 2020
    DISTRIBUTED for Conference of 2/21/2020.
  107. Jan 21 2020
    DISTRIBUTED for Conference of 1/24/2020.
  108. Jan 13 2020
    DISTRIBUTED for Conference of 1/17/2020.
  109. Jan 06 2020
    DISTRIBUTED for Conference of 1/10/2020.
  110. Dec 11 2019
    Rescheduled.
  111. Dec 09 2019
    DISTRIBUTED for Conference of 12/13/2019.
  112. Dec 03 2019
    Rescheduled.
  113. Nov 20 2019
    DISTRIBUTED for Conference of 12/6/2019.
  114. Nov 12 2019
    Rescheduled.
  115. Oct 30 2019
    DISTRIBUTED for Conference of 11/15/2019.
  116. Oct 28 2019
    Reply of petitioners Sharonell Fulton, et al. filed.
  117. Oct 10 2019
    Brief of respondents Support Center for Child Advocates and Philadelphia Family Pride in opposition filed.
  118. Oct 10 2019
    Brief of respondents City of Philadelphia, et al. in opposition filed.
  119. Aug 26 2019
    Brief amici curiae of The States of Texas, et al. filed.
  120. Aug 26 2019
    Brief amici curiae of 44 United States Senators and Members of the House of Representatives filed.
  121. Aug 26 2019
    Brief amicus curiae of Center for Constitutional Jurisprudence filed.
  122. Aug 26 2019
    Brief amicus curiae of Foundation for Moral Law filed.
  123. Aug 16 2019
    Brief amicus curiae of Jewish Coalition for Religious Liberty filed.
  124. Aug 13 2019
    Motion to extend the time to file a response is granted in part; the time is extended to and including October 10, 2019.
  125. Aug 07 2019
    Motion to extend the time to file a response from August 26, 2019 to October 25, 2019, submitted to The Clerk.
  126. Aug 07 2019
    Brief amici curiae of Former Foster Children and Foster Parents and the Catholic Association Foundation filed.
  127. Jul 22 2019
    Petition for a writ of certiorari filed. (Response due August 26, 2019)