`(Slip Opinion)
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` OCTOBER TERM, 2020
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`Syllabus
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`1
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` NOTE: Where it is feasible, a syllabus (headnote) will be released, as is
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` being done in connection with this case, at the time the opinion is issued.
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` The syllabus constitutes no part of the opinion of the Court but has been
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` prepared by the Reporter of Decisions for the convenience of the reader.
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` See United States v. Detroit Timber & Lumber Co., 200 U. S. 321, 337.
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`SUPREME COURT OF THE UNITED STATES
`
`
`
` Syllabus
`
` FULTON ET AL. v. CITY OF PHILADELPHIA,
`
`
` PENNSYLVANIA, ET AL.
`CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR
`
`THE THIRD CIRCUIT
` No. 19–123. Argued November 4, 2020—Decided June 17, 2021
`
`Philadelphia’s foster care system relies on cooperation between the City
`
`and private foster care agencies. The City enters standard annual con-
`
` tracts with the agencies to place children with foster families. One of
`the responsibilities of the agencies is certifying prospective foster fam-
`ilies under state statutory criteria. Petitioner Catholic Social Services
`has contracted with the City to provide foster care services for over 50
`years, continuing the centuries-old mission of the Catholic Church to
`
`serve Philadelphia’s needy children. CSS holds the religious belief
`
`that marriage is a sacred bond between a man and a woman. Because
`CSS believes that certification of prospective foster families is an en-
`dorsement of their relationships, it will not certify unmarried cou-
`ples—regardless of their sexual orientation—or same-sex married cou-
`
`ples. But other private foster agencies in Philadelphia will certify
`
`
`same-sex couples, and no same-sex couple has sought certification
`from CSS. Against this backdrop, a 2018 newspaper story recounted
`the Archdiocese of Philadelphia’s position that CSS could not consider
`prospective foster parents in same-sex marriages. Calls for investiga-
`
`tion followed, and the City ultimately informed CSS that unless it
`
`
`agreed to certify same-sex couples the City would no longer refer chil-
`
`dren to the agency or enter a full foster care contract with it in the
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`future. The City explained that the refusal of CSS to certify same-sex
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`married couples violated both a non-discrimination provision in the
`agency’s contract with the City as well as the non-discrimination re-
`
`quirements of the citywide Fair Practices Ordinance.
`
`CSS and three affiliated foster parents filed suit seeking to enjoin
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`the City’s referral freeze on the grounds that the City’s actions violated
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`the Free Exercise and Free Speech Clauses of the First Amendment.
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`

`

`2
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`FULTON v. PHILADELPHIA
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`
`Syllabus
`The District Court denied preliminary relief. It reasoned that the con-
`tractual non-discrimination requirement and the Fair Practices Ordi-
`nance were both neutral and generally applicable under Employment
`
`
`Div., Dept. of Human Resources of Ore. v. Smith, 494 U. S. 872, and
`
`that CSS’s free exercise claim was therefore unlikely to succeed. The
`Court of Appeals for the Third Circuit affirmed. Given the expiration
`
`
`of the parties’ contract, the Third Circuit examined whether the City
`
`could condition contract renewal on the inclusion of new language for-
`bidding discrimination on the basis of sexual orientation. The court
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`concluded that the City’s proposed contractual terms stated a neutral
`and generally applicable policy under Smith. CSS and the foster par-
`
`ents challenge the Third Circuit’s determination that the City’s actions
`
`were permissible under Smith and also ask the Court to reconsider
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`that decision.
`
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`Held: The refusal of Philadelphia to contract with CSS for the provision
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`
`of foster care services unless CSS agrees to certify same-sex couples as
`foster parents violates the Free Exercise Clause of the First Amend-
`ment. Pp. 4–15.
`
`
`
`(a) The City’s actions burdened CSS’s religious exercise by forcing it
`either to curtail its mission or to certify same-sex couples as foster par-
`ents in violation of its religious beliefs. Smith held that laws inci-
`
`dentally burdening religion are ordinarily not subject to strict scrutiny
`under the Free Exercise Clause so long as they are both neutral and
`
`generally applicable. 494 U. S., at 878–882. This case falls outside
`Smith because the City has burdened CSS’s religious exercise through
`policies that do not satisfy the threshold requirement of being neutral
`
`and generally applicable. Church of Lukumi Babalu Aye, Inc. v. Hia-
`
`leah, 508 U. S. 520, 531–532. A law is not generally applicable if it
`
`invites the government to consider the particular reasons for a person’s
`conduct by creating a mechanism for individualized exemptions.
`Smith, 494 U. S., at 884. Where such a system of individual exemp-
`tions exists, the government may not refuse to extend that system to
`
`cases of religious hardship without a compelling reason. Ibid. Pp. 4–
`7.
`
`(1) The non-discrimination requirement of the City’s standard fos-
`
`
`ter care contract is not generally applicable. Section 3.21 of the con-
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`tract requires an agency to provide services defined in the contract to
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`prospective foster parents without regard to their sexual orientation.
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`But section 3.21 also permits exceptions to this requirement at the
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`“sole discretion” of the Commissioner. This inclusion of a mechanism
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`for entirely discretionary exceptions renders the non-discrimination
`provision not generally applicable. Smith, 494 U. S., at 884. The City
`maintains that greater deference should apply to its treatment of pri-
`
`vate contractors, but the result here is the same under any level of
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`

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`
`3
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`Cite as: 593 U. S. ____ (2021)
`
`
`Syllabus
`
`deference. Similarly unavailing is the City’s recent contention that
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`section 3.21 does not even apply to CSS’s refusal to certify same-sex
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`couples. That contention ignores the broad sweep of section 3.21’s text,
`as well as the fact that the City adopted the current version of section
`3.21 shortly after declaring that it would make CSS’s obligation to cer-
`
`tify same-sex couples “explicit” in future contracts. Finally, because
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`state law makes clear that the City’s authority to grant exceptions
`from section 3.21 also governs section 15.1’s general prohibition on sex-
`ual orientation discrimination, the contract as a whole contains no gen-
`erally applicable non-discrimination requirement. Pp. 7–10.
`
`(2) Philadelphia’s Fair Practices Ordinance, which as relevant for-
`
`bids interfering with the public accommodations opportunities of an
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`individual based on sexual orientation, does not apply to CSS’s actions
`here. The Ordinance defines a public accommodation in relevant part
`to include a provider “whose goods, services, facilities, privileges, ad-
`vantages or accommodations are extended, offered, sold, or otherwise
`made available to the public.” Phila. Code §9–1102(1)(w). Certifica-
`
`tion is not “made available to the public” in the usual sense of the
`words. Certification as a foster parent is not readily accessible to the
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`public; the process involves a customized and selective assessment
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`that bears little resemblance to staying in a hotel, eating at a restau-
`rant, or riding a bus. The District Court’s contrary conclusion did not
`take into account the uniquely selective nature of foster care certifica-
`tion. Pp. 10–13.
`
`(b) The contractual non-discrimination requirement burdens CSS’s
`
`religious exercise and is not generally applicable, so it is subject to “the
`
`
`most rigorous of scrutiny.” Lukumi, 508 U. S., at 546. A government
`policy can survive strict scrutiny only if it advances compelling inter-
`ests and is narrowly tailored to achieve those interests. Ibid. The
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`question is not whether the City has a compelling interest in enforcing
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`its non-discrimination policies generally, but whether it has such an
`
`interest in denying an exception to CSS. Under the circumstances
`here, the City does not have a compelling interest in refusing to con-
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`tract with CSS. CSS seeks only an accommodation that will allow it
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`to continue serving the children of Philadelphia in a manner consistent
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`with its religious beliefs; it does not seek to impose those beliefs on
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`
`anyone else. The refusal of Philadelphia to contract with CSS for the
`provision of foster care services unless the agency agrees to certify
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`same-sex couples as foster parents cannot survive strict scrutiny and
`violates the Free Exercise Clause of the First Amendment. The Court
`
`does not consider whether the City’s actions also violate the Free
`Speech Clause. Pp. 13–15.
`922 F. 3d. 140, reversed and remanded.
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`

`

`4
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`FULTON v. PHILADELPHIA
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`
`Syllabus
` 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
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`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.
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`

`

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` Cite as: 593 U. S. ____ (2021)
`
`Opinion of the Court
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`1
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` NOTICE: This opinion is subject to formal revision before publication in the
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` preliminary print of the United States Reports. Readers are requested to
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` notify the Reporter of Decisions, Supreme Court of the United States, Wash-
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` ington, D. C. 20543, of any typographical or other formal errors, in order that
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` corrections may be made before the preliminary print goes to press.
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`SUPREME COURT OF THE UNITED STATES
`
`_________________
`
` No. 19–123
`_________________
`
` SHARONELL FULTON, ET AL., PETITIONERS v.
`
` CITY OF PHILADELPHIA, PENNSYLVANIA, ET AL.
`
`ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF
`
`APPEALS FOR THE THIRD CIRCUIT
`[June 17, 2021]
`CHIEF JUSTICE ROBERTS delivered the opinion of the
`Court.
`
`Catholic Social Services is a foster care agency in Phila-
`
`
`delphia. The City stopped referring children to CSS upon
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`discovering that the agency would not certify same-sex cou-
`ples to be foster parents due to its religious beliefs about
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`marriage. The City will renew its foster care contract with
`
`CSS only if the agency agrees to certify same-sex couples.
`The question presented is whether the actions of Philadel-
`phia violate the First Amendment.
`I
`
`The Catholic Church has served the needy children of
`Philadelphia for over two centuries. In 1798, a priest in the
`
`City organized an association to care for orphans whose
`parents had died in a yellow fever epidemic. H. Folks, The
`
`Care of Destitute, Neglected, and Delinquent Children 10
`(1902). During the 19th century, nuns ran asylums for or-
`phaned and destitute youth. T. Hacsi, Second Home: Or-
`phan Asylums and Poor Families in America 24 (1997).
`
`
`When criticism of asylums mounted in the Progressive
`Era, see id., at 37–40, the Church established the Catholic
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`

`

`2
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` FULTON v. PHILADELPHIA
`
`Opinion of the Court
`Children’s Bureau to place children in foster homes. Peti-
`
`tioner CSS continues that mission today.
`
`The Philadelphia foster care system depends on coopera-
`
`tion between the City and private foster agencies like CSS.
`
`When children cannot remain in their homes, the City’s
`Department of Human Services assumes custody of them.
`The Department enters standard annual contracts with pri-
`vate foster agencies to place some of those children with
`foster families.
`
`The placement process begins with review of prospective
`foster families. Pennsylvania law gives the authority to cer-
`tify foster families to state-licensed foster agencies like
`CSS. 55 Pa. Code §3700.61 (2020). Before certifying a fam-
`ily, an agency must conduct a home study during which it
`considers statutory criteria including the family’s “ability to
`provide care, nurturing and supervision to children,”
`
`“[e]xisting family relationships,” and ability “to work in
`partnership” with a foster agency. §3700.64. The agency
`must decide whether to “approve, disapprove or provision-
`ally approve the foster family.” §3700.69.
`
`
`When the Department seeks to place a child with a foster
`family, it sends its contracted agencies a request, known as
`a referral. The agencies report whether any of their certi-
`
`fied families are available, and the Department places the
`child with what it regards as the most suitable family. The
`agency continues to support the family throughout the
`placement.
`
`The religious views of CSS inform its work in this system.
`CSS believes that “marriage is a sacred bond between a
`man and a woman.” App. 171. Because the agency under-
`stands the certification of prospective foster families to be
`an endorsement of their relationships, it will not certify un-
`
`married couples—regardless of their sexual orientation—or
`
`same-sex married couples. CSS does not object to certifying
`gay or lesbian individuals as single foster parents or to plac-
`ing gay and lesbian children. No same-sex couple has ever
`
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`

`3
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` Cite as: 593 U. S. ____ (2021)
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`Opinion of the Court
` sought certification from CSS. If one did, CSS would direct
`
`the couple to one of the more than 20 other agencies in the
`City, all of which currently certify same-sex couples. For
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`over 50 years, CSS successfully contracted with the City to
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`provide foster care services while holding to these beliefs.
`
`But things changed in 2018. After receiving a complaint
`
`about a different agency, a newspaper ran a story in which
`a spokesman for the Archdiocese of Philadelphia stated that
`CSS would not be able to consider prospective foster par-
`ents in same-sex marriages. The City Council called for an
`investigation, saying that the City had “laws in place to pro-
`tect its people from discrimination that occurs under the
`guise of religious freedom.” App. to Pet. for Cert. 147a. The
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`Philadelphia Commission on Human Relations launched an
`
`inquiry. And the Commissioner of the Department of Hu-
`man Services held a meeting with the leadership of CSS.
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`She remarked that “things have changed since 100 years
`
`ago,” and “it would be great if we followed the teachings of
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`Pope Francis, the voice of the Catholic Church.” App. 366.
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`Immediately after the meeting, the Department informed
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`CSS that it would no longer refer children to the agency.
`The City later explained that the refusal of CSS to certify
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`same-sex couples violated a non-discrimination provision in
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`its contract with the City as well as the non-discrimination
`requirements of the citywide Fair Practices Ordinance. The
`City stated that it would not enter a full foster care contract
`
`with CSS in the future unless the agency agreed to certify
`
`same-sex couples.
`
`CSS and three foster parents affiliated with the agency
`
`filed suit against the City, the Department, and the Com-
`mission. The Support Center for Child Advocates and Phil-
`adelphia Family Pride intervened as defendants. As rele-
`vant here, CSS alleged that the referral freeze violated the
`Free Exercise and Free Speech Clauses of the First Amend-
`ment. CSS sought a temporary restraining order and pre-
`liminary injunction directing the Department to continue
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`

`

`4
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` FULTON v. PHILADELPHIA
`
`Opinion of the Court
`referring children to CSS without requiring the agency to
`certify same-sex couples.
`The District Court denied preliminary relief. It con-
`
`cluded that the contractual non-discrimination require-
`ment and the Fair Practices Ordinance were neutral and
`generally applicable under Employment Division, Depart-
`ment of Human Resources of Oregon v. Smith, 494 U. S. 872
`(1990), and that the free exercise claim was therefore un-
`likely to succeed. 320 F. Supp. 3d 661, 680–690 (ED Pa.
`
`2018). The court also determined that the free speech
`
`claims were unlikely to succeed because CSS performed cer-
`tifications as part of a government program. Id., at
`695–700.
`The Court of Appeals for the Third Circuit affirmed. Be-
`
`cause the contract between the parties had expired, the
`court focused on whether the City could insist on the inclu-
`sion of new language forbidding discrimination on the basis
`of sexual orientation as a condition of contract renewal. 922
`F. 3d 140, 153 (2019). The court concluded that the pro-
`posed contractual terms were a neutral and generally ap-
`plicable policy under Smith. 922 F. 3d, at 152–159. The
`court rejected the agency’s free speech claims on the same
`grounds as the District Court. Id., at 160–162.
`CSS and the foster parents sought review. They chal-
`
`lenged the Third Circuit’s determination that the City’s ac-
` tions were permissible under Smith and also asked this
`
`
`Court to reconsider that precedent.
` We granted certiorari. 589 U. S. ___ (2020).
`
`
` II
`A
`The Free Exercise Clause of the First Amendment, appli-
`
`cable to the States under the Fourteenth Amendment, pro-
`vides that “Congress shall make no law . . . prohibiting the
`free exercise” of religion. As an initial matter, it is plain
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`

`

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`5
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` Cite as: 593 U. S. ____ (2021)
`
`Opinion of the Court
`that the City’s actions have burdened CSS’s religious exer-
`cise by putting it to the choice of curtailing its mission or
`approving relationships inconsistent with its beliefs. The
`City disagrees. In its view, certification reflects only that
`
`foster parents satisfy the statutory criteria, not that the
`agency endorses their relationships. But CSS believes that
`
`certification is tantamount to endorsement. And “religious
`
`beliefs need not be acceptable, logical, consistent, or com-
`prehensible to others in order to merit First Amendment
`protection.” Thomas v. Review Bd. of Ind. Employment Se-
`
`curity Div., 450 U. S. 707, 714 (1981). Our task is to decide
`whether the burden the City has placed on the religious ex-
`ercise of CSS is constitutionally permissible.
`Smith held that laws incidentally burdening religion are
`
`ordinarily not subject to strict scrutiny under the Free Ex-
`
`ercise Clause so long as they are neutral and generally ap-
`plicable. 494 U. S., at 878–882. CSS urges us to overrule
`Smith, and the concurrences in the judgment argue in favor
`of doing so, see post, p. 1 (opinion of ALITO, J.); post, p. 1
`(opinion of GORSUCH, J.). But we need not revisit that de-
`cision here. This case falls outside Smith because the City
`
`has burdened the religious exercise of CSS through policies
`
`that do not meet the requirement of being neutral and gen-
`erally applicable. See Church of Lukumi Babalu Aye, Inc.
`
`v. Hialeah, 508 U. S. 520, 531–532 (1993).
`Government fails to act neutrally when it proceeds in a
`
`
`manner intolerant of religious beliefs or restricts practices
`
`See Masterpiece
`because of their religious nature.
`
`Cakeshop, Ltd. v. Colorado Civil Rights Comm’n, 584 U. S.
`
`
`___, ___–___ (2018) (slip op., at 16–17); Lukumi, 508 U. S.,
`
`at 533. CSS points to evidence in the record that it believes
`demonstrates that the City has transgressed this neutrality
`
`standard, but we find it more straightforward to resolve
`
`this case under the rubric of general applicability.
`A law is not generally applicable if it “invite[s]” the gov-
`
`ernment to consider the particular reasons for a person’s
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`
`

`

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`6
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` FULTON v. PHILADELPHIA
`
`Opinion of the Court
`conduct by providing “‘a mechanism for individualized ex-
`emptions.’” Smith, 494 U. S., at 884 (quoting Bowen v. Roy,
`
`
`476 U. S. 693, 708 (1986) (opinion of Burger, C. J., joined by
`
`
`Powell and Rehnquist, JJ.)). For example, in Sherbert v.
`
`Verner, 374 U. S. 398 (1963), a Seventh-day Adventist was
`
`fired because she would not work on Saturdays. Unable to
`find a job that would allow her to keep the Sabbath as her
`faith required, she applied for unemployment benefits. Id.,
`at 399–400. The State denied her application under a law
`prohibiting eligibility to claimants who had “failed, without
`
`good cause . . . to accept available suitable work.” Id., at
`
`401 (internal quotation marks omitted). We held that the
`denial infringed her free exercise rights and could be justi-
`
`fied only by a compelling interest. Id., at 406.
`
`Smith later explained that the unemployment benefits
`law in Sherbert was not generally applicable because the
`
`“good cause” standard permitted the government to grant
`exemptions based on the circumstances underlying each ap-
`
`plication. See 494 U. S., at 884 (citing Roy, 476 U. S., at
`
`
`
`708; Sherbert, 374 U. S., at 401, n. 4). Smith went on to
`
`hold that “where the State has in place a system of individ-
`ual exemptions, it may not refuse to extend that system to
`
`cases of ‘religious hardship’ without compelling reason.”
`
`494 U. S., at 884 (quoting Roy, 476 U. S., at 708); see also
`
`Lukumi, 508 U. S., at 537 (same).
`
`A law also lacks general applicability if it prohibits reli-
`gious conduct while permitting secular conduct that under-
`mines the government’s asserted interests in a similar way.
`See id., at 542–546. In Church of Lukumi Babalu Aye, Inc.
`
`v. Hialeah, for instance, the City of Hialeah adopted several
`
`ordinances prohibiting animal sacrifice, a practice of the
`Santeria faith. Id., at 524–528. The City claimed that the
`
`ordinances were necessary in part to protect public health,
`
`which was “threatened by the disposal of animal carcasses
`in open public places.” Id., at 544. But the ordinances did
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`

`

`7
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` Cite as: 593 U. S. ____ (2021)
`
`Opinion of the Court
`not regulate hunters’ disposal of their kills or improper gar-
`bage disposal by restaurants, both of which posed a similar
`hazard. Id., at 544–545. The Court concluded that this and
`other forms of underinclusiveness meant that the ordi-
`nances were not generally applicable. Id., at 545–546.
`
`B
`
`The City initially argued that CSS’s practice violated sec-
`
`
`tion 3.21 of its standard foster care contract. We conclude,
`however, that this provision is not generally applicable as
`required by Smith. The current version of section 3.21 spec-
`ifies in pertinent part:
`“Rejection of Referral. Provider shall not reject a
`child or family including, but not limited to, . . . pro-
`spective foster or adoptive parents, for Services based
`upon . . . their . . . sexual orientation . . . unless an ex-
`ception is granted by the Commissioner or the Commis-
`sioner’s designee, in his/her sole discretion.” Supp.
`App. to Brief for City Respondents 16–17.
`
`
`This provision requires an agency to provide “Services,”
`
`defined as “the work to be performed under this Contract,”
`App. 560, to prospective foster parents regardless of their
`sexual orientation.
`
`Like the good cause provision in Sherbert, section 3.21 in-
`corporates a system of individual exemptions, made availa-
`ble in this case at the “sole discretion” of the Commissioner.
`The City has made clear that the Commissioner “has no in-
`tention of granting an exception” to CSS. App. to Pet. for
`Cert. 168a. But the City “may not refuse to extend that
`[exemption] system to cases of ‘religious hardship’ without
`compelling reason.” Smith, 494 U. S., at 884 (quoting Roy,
`476 U. S., at 708).
`
`The City and intervenor-respondents resist this conclu-
`sion on several grounds. They first argue that governments
`
`should enjoy greater leeway under the Free Exercise Clause
`
`

`

`8
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` FULTON v. PHILADELPHIA
`
`Opinion of the Court
`when setting rules for contractors than when regulating the
`
`general public. The government, they observe, commands
`
`heightened powers when managing its internal operations.
`See NASA v. Nelson, 562 U. S. 134, 150 (2011); Engquist v.
`
`
`Oregon Dept. of Agriculture, 553 U. S. 591, 598–600 (2008).
`
`And when individuals enter into government employment
`or contracts, they accept certain restrictions on their free-
`
`
`dom as part of the deal. See Garcetti v. Ceballos, 547 U. S.
`410, 418–420 (2006); Board of Comm’rs, Wabaunsee Cty. v.
`
`Umbehr, 518 U. S. 668, 677–678 (1996). Given this context,
`the City and intervenor-respondents contend, the govern-
`ment should have a freer hand when dealing with contrac-
`tors like CSS.
`
`These considerations cannot save the City here. As Phil-
`
`adelphia rightly acknowledges, “principles of neutrality
`
`and general applicability still constrain the government in
`its capacity as manager.” Brief for City Respondents 11–
`12. We have never suggested that the government may dis-
`criminate against religion when acting in its managerial
`role. And Smith itself drew support for the neutral and gen-
`
`erally applicable standard from cases involving internal
`government affairs. See 494 U. S., at 883–885, and n. 2 (cit-
`
`ing Lyng v. Northwest Indian Cemetery Protective Assn.,
`485 U. S. 439 (1988); Roy, 476 U. S. 693). The City and
`intervenor-respondents accordingly ask only that courts ap-
`
`ply a more deferential approach in determining whether a
`policy is neutral and generally applicable in the contracting
`context. We find no need to resolve that narrow issue in
`
`
`this case. No matter the level of deference we extend to the
`City, the inclusion of a formal system of entirely discretion-
`ary exceptions in section 3.21 renders the contractual non-
`
`discrimination requirement not generally applicable.
`
`Perhaps all this explains why the City now contends that
`section 3.21 does not apply to CSS’s refusal to certify same-
`sex couples after all. Contrast App. to Pet. for Cert. 167a–
`
`168a with Brief for City Respondents 35–36. Instead, the
`
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`

`9
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` Cite as: 593 U. S. ____ (2021)
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`Opinion of the Court
`City says that section 3.21 addresses only “an agency’s right
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`to refuse ‘referrals’ to place a child with a certified foster
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`family.” Brief for City Respondents 36. We think the City
`had it right the first time. Although the section is titled
`“Rejection of Referral,” the text sweeps more broadly, for-
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`bidding the rejection of “prospective foster . . . parents” for
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`“Services,” without limitation. Supp. App. to Brief for City
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`Respondents 16. The City maintains that certification is
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`one of the services foster agencies are hired to perform, so
`its attempt to backtrack on the reach of section 3.21 is un-
`availing. See A. Scalia & B. Garner, Reading Law: The In-
`terpretation of Legal Texts 222 (2012) (“[A] title or heading
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`should never be allowed to override the plain words of a
`text.”). Moreover, the City adopted the current version of
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`section 3.21 shortly after declaring that it would make
`CSS’s obligation to certify same-sex couples “explicit” in fu-
`ture contracts, App. to Pet. for Cert. 170a, confirming our
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`understanding of the text of the provision.
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`The City and intervenor-respondents add that, notwith-
`standing the system of exceptions in section 3.21, a sepa-
`rate provision in the contract independently prohibits dis-
`crimination in the certification of foster parents. That
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`provision, section 15.1, bars discrimination on the basis of
`sexual orientation, and it does not on its face allow for ex-
`ceptions. See Supp. App. to Brief for City Respondents 31.
`But state law makes clear that “one part of a contract can-
`not be so interpreted as to annul another part.” Shehadi v.
`Northeastern Nat. Bank of Pa., 474 Pa. 232, 236, 378 A. 2d
`
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`304, 306 (1977); see Commonwealth ex rel. Kane v. UPMC,
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`634 Pa. 97, 135, 129 A. 3d 441, 464 (2015). Applying that
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`“fundamental” rule here, Shehadi, 474 Pa., at 236, 378
`A. 2d, at 306, an exception from section 3.21 also must gov-
`ern the prohibition in section 15.1, lest the City’s reserva-
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`tion of the authority to grant such an exception be a nullity.
`As a result, the contract as a whole contains no generally
`applicable non-discrimination requirement.
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` FULTON v. PHILADELPHIA
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`Opinion of the Court
`Finally, the City and intervenor-respondents contend
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`that the availability of exceptions under section 3.21 is ir-
`relevant because the Commissioner has never granted one.
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`That misapprehends the issue. The creation of a formal
`mechanism for granting exceptions renders a policy not
`generally applicable, regardless whether any exceptions
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`have been given, because it “invite[s]” the government to
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`decide which reasons for not complying with the policy are
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`worthy of solicitude, Smith, 494 U. S., at 884—here, at the
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`Commissioner’s “sole discretion.”
`The concurrence objects that no party raised these argu-
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`ments in this Court. Post, at 6 (opinion of GORSUCH, J.).
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`But CSS, supported by the United States, contended that
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`the City’s “made-for-CSS Section 3.21 permits discretionary
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`‘exception[s]’ from the requirement ‘not [to] reject a child or
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`family’ based upon ‘their . . . sexual orientation,’” which
`“alone triggers strict scrutiny.” Reply Brief 5 (quoting
`Supp. App. to Brief for City Respondents 16; some altera-
`tions in original); see also Brief for Petitioners 26–27 (sec-
`
`
`tion 3.21 triggers strict scrutiny); Brief for United States as
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`Amicus Curiae 21–22 (same). The concurrence favors the
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`City’s reading of section 3.21, see post, at 5–6, but we find
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`CSS’s position more persuasive.
`C
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`In addition to relying on the contract, the City argues
`that CSS’s refusal to certify same-sex couples constitutes
`an “Unlawful Public Accommodations Practice[]” in viola-
`tion of the Fair Practices Ordinance. That ordinance for-
`bids “deny[ing] or interfer[ing] with the public accommoda-
`tions opportunities of an
`individual or otherwise
`discriminat[ing] based on his or her race, ethnicity, color,
`sex, sexual orientation, . . . disability, marital status, famil-
`ial status,” or several other protected categories. Phila.
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`Code §9–1106(1) (2016). The City contends that foster care
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`Opinion of the Court
`agencies are public accommodations and therefore forbid-
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`den from discriminating on the basis of sexual orientation
`when certifying foster parents.
`
`
`CSS counters that “foster care has never been treated as
`a ‘public accommodation’ in Philadelphia.” Brief for Peti-
`tioners 13. In any event, CSS adds, the ordinance cannot
`qualify as generally applicable because the City allows ex-
`ceptions to it for secular reasons despite denying one for
`CSS’s religious exercise. But that constitutional issue
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`arises only if the ordinance applies to CSS in the first place.
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`We conclude that it does not because foster care agencies do
`not act as public accommodations in performing certifica-
`tions.
`
`The ordinance defines a public accommodation in rele-
`vant part as “[a]ny place, provider or public conveyance,
`whether licensed or not, which solicits or accepts the pat-
`ronage or trade of the public or whose goods, services, facil-
`ities, privileges, advantages or accommodations are ex-
`tended, offered, sold, or otherwise made available to the
`public.” §9–1102(1)(w). Certification is not “made available
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`to the public” in the usual sense of the words. To make a
`service “available” means to make it “accessible, obtaina-
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`ble.” Merriam-Webster’s Collegiate Dictionary 84 (11th ed.
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`2005); see also 1 Oxford English Dictionary 812 (2d ed.
`1989) (“capable of being made use of, at one’s disposal,
`within one’s reach”). Related state law illustrates the same
`point. A Pennsylvania antidiscrimination statute similarly
`defines a public accommodation as an accommodation that
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`is “open to, accepts or solicits the patronage of the general
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`public.” Pa. Stat. Ann., Tit. 43, §954(l) (Purdon Cum. Supp.
`2009). It fleshes out that definition with examples like ho-
`tels, restaurants, drug stores, swimming pools, barber-
`shops, and public conveyances. Ibid. The “common theme”
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`is that a public accommodation must “provide a benefit to
`the general public allowing individual members of the gen-
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` FULTON v. PHILADELPHIA
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`Opinion of the Court
`eral public to avail themselves of that benefit if they so de-
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`sire.” Blizzard v. Floyd, 149 Pa. Commw. 503, 506, 613
`A. 2d 619, 621 (1992).
`
`Certification as a foster parent, by contrast, is not readily
`accessible to the public. It involves a customized and selec-
`tive assessment that bears little resemblance to staying in
`a hotel, eating at a restaurant, or riding a bus. The process
`takes three to six months. Applicants must pass back-
`ground checks and a medical exam. Foster agencies are re-
`quired to conduct an intensive home study