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Fri Oct 30, 2020, 10:35 AM

Symposium: The First Amendment does not require governments to contract with parties who do not ...

Last edited Fri Oct 30, 2020, 11:35 AM - Edit history (1)

Clare Kindall Guest

Posted Thu, October 29th, 2020 12:50 pm

Symposium: The First Amendment does not require governments to contract with parties who do not comply with neutral, generally applicable rules

This article is part of a symposium previewing Fulton v. City of Philadelphia.

Clare Kindall is the solicitor general for the state of Connecticut, which joined a multi-state amicus brief filed in support of Philadelphia. While in accord with the states’ filed brief, the views expressed here are entirely her own.


On Nov. 4, the Supreme Court will hear oral argument in Fulton v. City of Philadelphia, a challenge to Philadelphia’s requirement that any private vendor providing foster care services must agree not to discriminate on the basis of protected status. Philadelphia has never waived its nondiscrimination requirement for its vendors. Catholic Social Services wishes to be hired by the city but wants to discriminate, based on its religious beliefs, against LGBTQ+ families in the screening for placement of foster children. Both the federal district court and the U.S. Court of Appeals for the 3rd Circuit held that Philadelphia’s nondiscrimination requirement for its contracts with private vendors does not violate the First Amendment.

The Supreme Court granted the petition for certiorari on three questions, one of which is whether a government program for foster care violates the First Amendment rights of religious organizations by conditioning participation on “taking actions and making statements that directly contradict the agency’s religious beliefs.” Yet, the facts of the case make it a particularly poor vehicle for a religious liberty argument. The state is not regulating; it is participating in the market for a particular service. The First Amendment does not require governments to use private contractors who refuse to provide the contracted services on a nondiscriminatory basis. And when governments contract with private vendors for governmental services, the same contract conditions need to apply to all vendors. To do otherwise would throw government contracting into chaos.

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Recommended Citation: Clare Kindall, Symposium: The First Amendment does not require governments to contract with parties who do not comply with neutral, generally applicable rules, SCOTUSblog (Oct. 29, 2020, 12:50 PM), https://www.scotusblog.com/2020/10/symposium-the-first-amendment-does-not-require-governments-to-contract-with-parties-who-do-not-comply-with-neutral-generally-applicable-rules/

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