The City of Philadelphia routinely enters contracts with private foster care agencies that operate under state statutory criteria to place children with foster families. Last week, in Fulton v. City of Philadelphia, the United States Supreme Court considered whether the city could refuse to refer children for placement to Catholic Social Services, which has contracted with the city to provide foster care services for more than 50 years, because CSS refused to certify both unmarried couples and same-sex married couples as prospective foster families.

In deciding to no longer refer children to the agency or enter a full foster care contract with CSS in the future, the city explained that the refusal of CSS to certify same-sex married couples violated both a non-discrimination provision in the agency's contract with the city as well as the non-discrimination requirements of the citywide Fair Practices Ordinance. CSS and three affiliated foster parents filed suit seeking to enjoin the city's referral freeze, claiming the city's actions violated the free exercise and free speech clauses of the First Amendment.