Fulton v. City of Philadelphia — civil — affirmance — Ambro

Catholic Social Services sued the City of Philadelphia because it wanted to continue to receive foster referrals from the city but it refused to comply with the city’s general anti-discrimination requirements because it refused to work with same-sex couples wanting to be foster parents. The Catholic foster agency claimed that the First Amendment’s Free Exercise, Establishment, and Free Speech clauses required the city to renew its contract with them despite the group’s unwillingness to comply with the city’s anti-discrimination laws. The district court ruled that Catholic Social Services was not entitled to a preliminary injunction, and today the Third Circuit affirmed, holding, “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.”

The heart of the opinion:

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.

The Catholic foster agency’s discrimination first came to light in this news story last year by Julia Terruso in the Philadelphia Inquirer.

[Disclosure: I assisted counsel for intervor-appellees by serving as an argument-moot judge.]

Joining Ambro were Scirica and Rendell. Arguing counsel were Lori Windham of the Becket Fund for Religious Liberty for Catholic Social Services, Jane Lovitch Istvan for the city, and Leslie Cooper of the ACLU for intervenor-appellees.

Curto v. A Country Place Condominium Assoc. — civil  — reversal — Ambro

A condominium community with a large Orthodox Jewish population had a swimming pool. To accommodate Orthodox principles, it aside over 60 hours a week for mens-only or women’s only swimming, leaving only 25 hours a week for mixed-gender swimming. Condo residents sued, alleging that the gender-segregation of the pool violated the Fair Housing Act. The district court ruled in favor of the condo, but today the Third Circuit reversed, holding that the pool segregation violates the FHA because it reserves most of the after-work hours to men.

Joining Ambro were Bibas and Fuentes. Fuentes also concurred to express skepticism that merely allocating the evening hours more evenly would save the condo’s sex-segregation policy. Arguing counsel were Sandra Park of ACLU for the plaintiffs and Angela Maione Costigan of Costigan & Costigan for the condominium association.