No.

19-123

In the Supreme Court of the United States

__________
SHARONELL FULTON, et al.,
Petitioners,
v.
CITY OF PHILADELPHIA, et al.,
Respondents.
__________
ON PETITION FOR A WRIT OF CERTIORARI TO THE
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
__________
REPLY BRIEF FOR PETITIONERS
__________

NICHOLAS M. CENTRELLA MARK. L. RIENZI

CONRAD O’BRIEN PC Counsel of Record
1500 Market Street LORI H. WINDHAM
Suite 3900 NICHOLAS R. REAVES
Philadelphia, PA 19102 WILLIAM J. HAUN
(215) 864-8098 JACOB M. COATE
THE BECKET FUND FOR
RELIGIOUS LIBERTY
1200 New Hampshire
Ave., NW
Washington, DC 20036
[email protected]
(202) 955-0095

Counsel for Petitioners

 TABLE OF CONTENTS
Page
TABLE OF AUTHORITIES ....................................... ii
INTRODUCTION ....................................................... 1
ARGUMENT ............................................................... 2
I. The circuit split is deep and the result of
Smith ................................................................ 2
A. The decision below deepens a 6-2
split ............................................................. 2
B. This case is an excellent vehicle to
revisit Smith ............................................... 7
II. The Third Circuit’s opinion runs afoul of
this Court’s unconstitutional conditions
cases ................................................................. 8
III.This case presents an ideal vehicle for
addressing the questions presented and
resolving issues of national importance........ 10
CONCLUSION ......................................................... 12
 ii
TABLE OF AUTHORITIES
Page(s)
CASES
Agency for Int’l Dev. v. AOSI, 570 U.S.
205 (2013) ................................................... 9, 10, 11
American Legion v. American Humanist
Ass’n,
139 S. Ct. 2067 (2019) .......................................... 12
Board of Cty. Comm’rs v. Umbehr,
518 U.S. 668 (1996) ........................................... 9-10
Bowen v. Kendrick,
487 U.S. 589 (1988) ...................................... 1, 8, 10
Central Rabbinical Cong. v. New York
City Dep’t of Health,
763 F.3d 183 (2014) ................................................ 6
Department of Texas, Veterans of
Foreign Wars v. Texas Lottery
Comm’n,
760 F.3d 427 (2014) ................................................ 8
Employment Div. v. Smith,
494 U.S. 872 (1990) ................................................ 1
Espinoza v. Montana Dep’t of Revenue,
435 P.3d 603 (Mont. 2018) ..................................... 9
Holt v. Hobbs,
135 S. Ct. 853 (2015) .............................................. 8
Masterpiece Cakeshop v. Colorado Civil
Rights Comm’n,
138 S. Ct. 1719 (2018) ............................................ 7
 iii
Obergefell v. Hodges,
135 S. Ct. 2584 (2015) ...................................... 1, 10
Stormans, Inc. v. Wiesman,
136 S. Ct. 2433 (2016) ............................................ 2
Stormans, Inc. v. Wiesman,
794 F.3d 1064 (9th Cir. 2015) ................................ 6
Trinity Lutheran Church of Columbia,
Inc. v. Comer,
137 S. Ct. 2012 (2017) ...................................... 9, 10
OTHER AUTHORITIES
Douglas Laycock & Steven T. Collis,
Generally Applicable Law and the
Free Exercise of Religion,
95 Neb. L. Rev. 1 (2016) ......................................... 1
Douglas Laycock, The Remnants of
Free Exercise,
1990 Sup. Ct. Rev. 1 (1990).................................... 7
Phila. City Charter § 2-309 ....................................... 11
 INTRODUCTION
This petition involves both deep circuit splits and
urgent issues of national importance. In opposition,
Philadelphia offers pro forma arguments, claiming im-
aginary factual disputes and simply ignoring the prec-
edents that make up the splits on both free exercise
and free speech. Apparently unsure whether its previ-
ous four post-hoc justifications suffice, Philadelphia of-
fers the Court two new alleged policies in its ongoing
attempt to exclude CSS from foster care while avoid-
ing judicial scrutiny.
Philadelphia’s evasive maneuvers cannot conceal
the “deep and wide” split over what makes a law reli-
giously neutral and generally applicable, as courts and
legal scholars acknowledge. Douglas Laycock & Ste-
ven T. Collis, Generally Applicable Law and the Free
Exercise of Religion, 95 Neb. L. Rev. 1, 11, 15 (2016)
(Laycock). This split also underscores the need, as four
Justices have recognized, to revisit its source: Employ-
ment Div. v. Smith, 494 U.S. 872 (1990). The key facts
are undisputed. Philadelphia’s shifting rationales
demonstrate that its actions are not neutral attempts
at good governance, but ploys to penalize disfavored
religious practices—and to hide behind Smith while
doing it.
The Court has known for years that this issue
would arise. See Obergefell v. Hodges, 135 S. Ct. 2584,
2626 (2015) (Roberts, C.J., dissenting). Without this
Court’s intervention, the decision below will jeopard-
ize the “long history of cooperation and interdepend-
ency between governments and charitable or religious
organizations.” Bowen v. Kendrick, 487 U.S. 589, 609
(1988). Religious groups, governments, parents, and
children hoping for a stable home need to know
 2
whether the law protects their ability to serve those
most in need.
ARGUMENT
I. The circuit split is deep and the result of
Smith.
A. The decision below deepens a 6-2 split.
The petition sets forth a 6-2 split over the require-
ments to prove a Free Exercise violation. Pet.19-29.
The Third Circuit, after reciting various Free Exercise
cases, distilled them to a new standard: plaintiffs must
prove that someone else was permitted to engage in
identical conduct for non-religious reasons. Other cir-
cuits permit a variety of ways to prove a law was not
neutral or generally applicable. Pet.19.
Respondents deny the split, but tellingly never ex-
plain (despite nearly 18,000 words of briefing), how
the Third Circuit’s decision is consistent with the de-
cisions of the Second (Central Rabbinical Congress),
Sixth (Ward), Seventh (St. John’s), Eighth (CHILD),
Tenth (Axson-Flynn, Shrum), or Eleventh (Midrash)
Circuits. Instead, Respondents admit the Third Cir-
cuit’s decision “is also consistent with” Stormans, a
case on the other side of the split, in which three Jus-
tices of an eight-Justice court would have granted cer-
tiorari. Phila. BIO 18-19; see also Stormans, Inc. v.
Wiesman, 136 S. Ct. 2433 (2016) (Alito, J., dissenting
from denial of certiorari).
Philadelphia’s lack of a neutral, generally applica-
ble law is clear and would have been dispositive in six
circuits. Philadelphia attempted to prohibit CSS’s re-
ligious exercise by hopping among the following poli-
cies: that (1) all agencies must assess all applicants,
 3
(2) its fair practices ordinance (FPO) prohibits dis-
crimination against protected classes, (3) it created a
new non-discrimination provision for 2019 contracts,
and (4) its City Charter required its actions. But (1)
and (2) not only do not apply, they are riddled with ex-
ceptions; (3) was the result of religious targeting; and
(4) by its terms never applied. Pet.11-15.
Now, in case those rationalizations are not enough,
Philadelphia introduces two more: (5) a brand-new
“Waiver/Exemption Committee” created during this
appeal and made up of its lawyers and (6) “an updated
and more detailed nondiscrimination provision” in
2020 contracts. Phila. BIO 15, 21. This is not applica-
tion of a neutral law of general applicability. It is
whack-a-mole.
Philadelphia also attempts to claim that the circuit
split is really a factual disagreement. Not so. Philadel-
phia’s policies are riddled with exemptions, Philadel-
phia officials’ statements indicate religious targeting,
and Philadelphia cycles through multiple policies.
None of these facts are disputed: the exceptions are
written into the contracts; the officials’ statements are
admitted; and the policy shifts are embraced as a fea-
ture, not a bug. In other circuits, any one of these facts
would merit strict scrutiny. Pet.22-28.
1. The Sixth, Tenth, and Eleventh Circuits would
have applied strict scrutiny here. The Sixth and Tenth
Circuits hold that policies allowing for individualized
exemptions are, by definition, not generally applica-
ble. Pet.23-25 (citing Ward and Axson-Flynn). No one
disputes that Philadelphia uses a system of individu-
alized exemptions: the exemptions are in the contract.
Pet.App.167a. Philadelphia asserts that all agencies
 4
must assess all applicants, Phila. BIO 1, but the un-
derlying contract provision only applies “unless an ex-
ception is granted by the Commissioner” in her “sole
discretion.” Pet.App.167a.
Philadelphia has doubled down on its existing sys-
tem of individualized exemptions by creating a
“Waiver/Exemption Committee” to consider other
types of contract exemptions. Phila. BIO 15. Had the
Sixth or Tenth Circuits heard this case, this alone
would have mandated strict scrutiny. Pet.23-24.
The Sixth, Tenth, and Eleventh Circuits also apply
strict scrutiny where categorical exemptions for secu-
lar conduct are present. Philadelphia makes such ex-
emptions from its FPO. Pet.11; Phila. BIO 24. Indeed,
Philadelphia acknowledges that agencies may “con-
sider mental health, ethnicity, and family relation-
ships” of prospective foster parents—all protected sta-
tuses under the FPO. Ibid. Philadelphia claims that
such exceptions are permissible when they “reflect[] a
neutral judgment”—a term Philadelphia struggles to
define and that seems designed to prohibit only reli-
gious accommodations. Phila. BIO 1, 24. Philadelphia
also claims these exceptions are justified in order to
“signal to children in the foster-care system that the
City respects their rights.” Ibid. But excluding CSS to
signal that its religious beliefs are out of step with the
City’s beliefs, or to signal support for opposing beliefs,
is hardly neutral.
In the Sixth, Tenth, and Eleventh Circuits, this
practice would face strict scrutiny. Pet.23-25. Yet the
Third Circuit decided that CSS would have to demon-
strate not just some secular exceptions, but that Phil-
adelphia “treat[ed] CSS worse than it would have
 5
treated another organization that did not work with
same-sex couples as foster parents but had different
religious beliefs.” Pet.App.32a. This was not, as Re-
spondents would have it, a stray remark, but—as the
Third Circuit said—“The question in our case.”
Pet.App.32a.
2. The Second, Sixth, Seventh, Eighth, and Tenth
Circuits look to a policy’s history in determining
whether it is neutral. Pet.25. Throughout this litiga-
tion, Philadelphia has flailed about among post-hoc
justifications to reach its desired result. See supra 2-
3; Pet.11-15. This is a shell game. Philadelphia cannot
settle on a consistent policy, but settles on one unwa-
vering outcome: CSS’s religious conduct must be pro-
hibited.
Respondents assert that Plaintiffs simply lacked
evidence the policies were non-neutral. Yet Respond-
ents do not dispute the facts underlying the claim.
They do not dispute their four policy shifts; instead
they add two more. They spend pages attempting to
rehabilitate statements of the City Council and Com-
missioner Figueroa, but do not dispute what was said.
See Phila. BIO 6-8, 11; Intervenors BIO 10-11, 13; see
also Pet.App.32a-34a.1 The dispute in this case is not
over the facts, but over which rule of law governs those
facts.
According to the Third Circuit, even facts showing
religious targeting are insufficient so long as the court
can also identify some ostensibly neutral purpose for

1They simply ignore the actions of the Human Relations Com-

mission, and urge the Court to look at anything other than the
mayor’s tweets. See ibid.
 6
the government action. Pet.App.37a-38a. In contrast,
the Tenth Circuit holds that non-neutral actions may
arise “not out of hostility or prejudice, but for secular
reasons.” Pet.26-27. The Sixth Circuit holds that a pol-
icy created in response to a religious exemption re-
quest (not to mention six such policies) is not neutral.
Pet.25-27. And the Second Circuit holds that where
“purposeful and exclusive regulation exists—where
the object of the law is itself the regulation of religious
conduct—the law is subject to heightened scrutiny[.]”
Central Rabbinical Cong. v. New York City Dep’t of
Health, 763 F.3d 183, 196 (2014). The Seventh and
Eighth Circuits likewise look to a new policy’s history
when determining neutrality. Pet.26. Respondents
never address any of these cases.
* * *
The Third and Ninth Circuits allow policies ex-
empting secular conduct, but not religious conduct,
unless a plaintiff proves that the differential treat-
ment was motivated by plaintiffs’ religion. Compare
Stormans, Inc. v. Wiesman, 794 F.3d 1064, 1077 (9th
Cir. 2015) (upholding law which “applies to all objec-
tions to delivery that do not fall within an exemption,
regardless of the motivation behind those objections”)
with Fulton, Pet.App.26a (“[A] challenger under the
Free Exercise Clause must show that it was treated
differently because of its religion.”). They also do not
credit evidence that a law was targeted at a religious
practice so long as the law has an ostensibly neutral
goal. Pet.20-22. In contrast, six other circuits hold that
laws must face strict scrutiny if they either create ex-
emptions or have a history indicating non-neutrality.
Pet.23-27. Scholars too have highlighted the split and
 7
urged the Court to determine “how much analogous
secular conduct can be left unregulated before a law
ceases to be generally applicable.” Laycock at 11, 15.
That question is squarely presented here.
B. This case is an excellent vehicle to revisit
Smith.
This deep split exists for a reason: Smith. Courts,
invoking Smith, may “defer to the political branches
on questions of formal neutrality and the scope of ex-
emptions,” be “myopic and deferential in considering
claims that analogous secular behavior has gone un-
regulated,” and may not be “vigorous about checking
for bad motive or religious gerrymander.” Douglas
Laycock, The Remnants of Free Exercise, 1990 Sup. Ct.
Rev. 1, 42, 54 (1990). “Everything” under Smith
“seems to depend on judicial willingness to enforce the
exceptions and police the neutrality requirement.” Id.
at 54. Unsurprisingly, Smith has spawned fractured
decisions filled with “after-the-fact maneuvering” to
avoid the Free Exercise Clause. See, e.g., Masterpiece
Cakeshop v. Colorado Civil Rights Comm’n, 138 S. Ct.
1719, 1737 (2018) (Gorsuch & Alito, JJ., concurring).
Absent review, such maneuvering may upend the
“long, unbroken history of faith-based providers caring
for children.” Members of Cong. Amicus Br. 4-10.
Respondents’ remaining arguments against Smith
are a sideshow. See Phila. BIO 26-27. As we discuss
below, there is no “public function” exception to the
First Amendment. Nor does the Establishment Clause
prohibit accommodation. Here, unlike in Larkin or
Teen Ranch, no one must go through CSS; it is one of
29 agencies in an open-ended system of true private
 8
choice. Moreover, “this Court has never held that reli-
gious institutions are disabled by the First Amend-
ment from participating in publicly sponsored social
welfare programs.” Bowen, 487 U.S. at 609. Further,
the suggestion that CSS should just exercise religion
by serving some other group in some other way makes
no sense. Governments cannot point to other forms of
religious exercise in hopes of avoiding a Free Exercise
violation. See Holt v. Hobbs, 135 S. Ct. 853, 862 (2015).
All parties know—and until Philadelphia’s BIO,
agreed—that this case turns on how and whether
Smith applies. Below, Philadelphia argued that ruling
for CSS would “upend Smith.” Resp. C.A. Br. 28. The
Third Circuit agreed, claiming that ruling for CSS
“runs directly counter to the premise of Smith” and
would render Smith a “dead letter.” Pet. App.37a-38a.
But now, to avoid Smith’s reconsideration, Respond-
ents claim “Smith is not outcome determinative.”
Phila. BIO 26-27; see also Intervenors BIO 24. This is
contrary to the arguments below and the Third Cir-
cuit’s reasoning.
This Court should grant certiorari to revisit Smith.
If Smith gives Philadelphia’s made-to-prohibit-CSS
policies a free pass, then the only “dead letter” is the
Free Exercise Clause.
II. The Third Circuit’s opinion runs afoul of this
Court’s unconstitutional conditions cases.
The Third Circuit allowed Philadelphia to exclude
agencies that will not speak a government message in
home studies. This splits with the Fifth Circuit’s en
banc decision in Department of Texas, Veterans of For-
eign Wars v. Texas Lottery Comm’n, 760 F.3d 427
(2014) (prohibiting the government from requiring a
 9
license, and then conditioning that license on the con-
tent of the applicant’s speech). Respondents do not dis-
pute this split. Instead, Philadelphia erroneously
claims that “CSS does not allege a circuit split on this
question.” Phila. BIO 29. Not so. See Pet.38 (“The
Third Circuit’s decision * * * splits with the Fifth Cir-
cuit.”).
Further, the Third Circuit’s decision departs from
this Court’s decision in Agency for Int’l Dev. v. AOSI,
which held that the government may not condition
participation in a government program on speech out-
side that program. 570 U.S. 205, 218-221 (2013). Here,
Philadelphia admits that it has “nothing to do” with
home studies. Pet.App.302a-303a.
Respondents also claim that this case is somehow
different from other First Amendment cases because
it involves a “public function.” Phila. BIO 29. But nei-
ther Respondent shows their work. They never define
“public function” nor cite to any persuasive authority
explaining why that distinction is relevant here. This
argument is particularly odd as CSS has engaged in
this work longer than Philadelphia. And the City’s
own contract states that CSS “shall not in any way or
for any purpose be deemed or intended to be an em-
ployee or agent of the City.” C.A. J.A. 1103.
But even if foster care were a public function (it is
not), there is nothing talismanic about this. Education,
public health, sanitation, and solemnization of mar-
riages could all fall into Respondents’ nebulous cate-
gory, yet the First Amendment still applies. See, e.g.,
Trinity Lutheran Church of Columbia, Inc. v. Comer,
137 S. Ct. 2012 (2017); Espinoza v. Montana Dep’t of
Revenue, 435 P.3d 603 (Mont. 2018); Board of Cty.
 10
Comm’rs v. Umbehr, 518 U.S. 668 (1996); Obergefell,
135 S. Ct. at 2594, 2602, 2607.
Philadelphia frets over “mayhem in government
contracting” if CSS prevails. Phila. BIO 30. But as this
Court has observed, there is a “long” (mayhem-free)
“history of cooperation and interdependency between
governments and charitable or religious organiza-
tions,” based in accommodation. Bowen, 487 U.S. at
609.2
III. This case presents an ideal vehicle for ad-
dressing the questions presented and resolv-
ing issues of national importance.
1. Respondents’ attempts to manufacture factual
obstacles to certiorari are unsuccessful. There is no
factual dispute over the core issue before this Court:
whether Philadelphia may shut out a Catholic foster
care agency because it disagrees with the agency’s sin-
cere religious beliefs about marriage. There is no dis-
pute that Philadelphia’s actions would prevent CSS
from engaging in its sincere, century-old religious ex-
ercise: providing foster care for Philadelphia’s most
vulnerable children. Nor is there any dispute that
CSS’s beliefs about marriage are the impetus for this
hostility. Nor is there any dispute about whether any
same-sex couples had ever even asked CSS for a home
study.

2 Contra Respondents, CSS does not seek an “indefinite” con-

tract, but merely the ability to participate without First Amend-
ment violations. AOSI sought—and received—the same kind of
remedy. See AOSI, 570 U.S. at 211-212. So did Trinity Lutheran.
Trinity Lutheran, 137 S. Ct. at 2022.
 11
Philadelphia points to other services CSS provides
and suggests that CSS’s foster care closure is specula-
tive. Phila. BIO 22-23. Both arguments fail. There is
no question that without the ability to contract with
Philadelphia, CSS would soon be forced to close its fos-
ter care program; Respondents’ only quibble is how
soon. Pet.17-18. Nor is there any question that CSS
would then be unable to serve Philadelphia children in
this way. Pet.6.
Respondents’ other objections fare no better. They
object that the record is “stale” because the ongoing
exclusion of CSS began under an annual contract that
has expired. Intervenor BIO 21. This Court has re-
viewed government grant programs and rejected the
argument that litigation-driven changes to those pro-
grams preclude review. See AOSI, 570 U.S. at 211-212,
219 (considering renewable grant program and reject-
ing claim that “the affiliate guidelines, established
while this litigation was pending, save the program.”).
And Philadelphia limits all contracts to one-year
terms absent express legislative authorization. Phila.
City Charter § 2-309. By this logic, it is impossible to
challenge any Philadelphia contract, as the dispute
would always be “stale.”
Philadelphia claims that the record below is insuf-
ficient. Far from it. The District Court held a three-
day evidentiary hearing resulting in a 742-page tran-
script, and the Third Circuit received a 1,200-page rec-
ord. This Court frequently hears First Amendment
cases on preliminary injunction records, as in NIFLA,
Holt, Hobby Lobby, and AOSI. Finally, Philadelphia
claims that review would not be outcome-determina-
tive because the Third Circuit “squarely held” Peti-
tioners lost on the non-“likelihood of success” factors.
 12
See Phila. BIO n.5. But the Third Circuit said the ex-
act opposite, explaining that likelihood of success
prong “alone defeats the request for a preliminary in-
junction.” Pet.App.50a. And the Third Circuit’s weigh-
ing of the other factors depended upon its finding of no
countervailing constitutional violation. Ibid.
2. The Third Circuit’s decision threatens all man-
ner of religious groups, including hospitals, homeless
shelters, and many others who partner with the gov-
ernment to serve vulnerable populations. These reli-
gious groups, and the government agencies who work
with them, need guidance from this Court. The deci-
sion below goes further than those before, denying a
church the ability to remain faithful to its sincere be-
liefs while serving those in need.
Even in the specific context of adoption and foster
care, our country has already seen nearly a decade of
closures of faith-based adoption programs. Pet.39.
Without relief, CSS will be forced to close its program.
Philadelphia does not dispute this fact, nor that it
needs more foster parents. Nor does it, or can it, con-
test the history of religious agency shutdowns during
a period of great need.
As the Court explained last Term, the Religion
Clauses “aim to foster a society in which people of all
beliefs can live together harmoniously.” American Le-
gion v. American Humanist Ass’n, 139 S. Ct. 2067,
2074 (2019). The Third Circuit instead embraced a
view of the Free Exercise Clause that mandates the
closing of a century-old religious ministry to foster
children. That divisive approach should not stand.
CONCLUSION
The Court should grant the petition.
 13

Respectfully submitted.
NICHOLAS M. CENTRELLA MARK. L. RIENZI
CONRAD O’BRIEN PC Counsel of Record
1500 Market Street LORI H. WINDHAM
Suite 3900 NICHOLAS R. REAVES
WILLIAM J. HAUN
JACOB M. COATE
Philadelphia, PA 19102 THE BECKET FUND FOR
(215) 864-8098 RELIGIOUS LIBERTY
1200 New Hampshire
Ave., NW
Washington, DC 20036
[email protected]
(202) 955-0095

Counsel for Petitioners

OCTOBER 2019