Supreme Court hears arguments on city’s foster-care dispute

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Photo: Scott Drake

Efforts by Philadelphia officials to eradicate anti-LGBT bias within the city’s foster-care system remain at risk, after the U.S. Supreme Court heard oral arguments this week about the contentious dispute.

City officials want to phase out a foster-care contract with Catholic Social Services because the agency refuses to help place foster-care children with same-sex couples. City officials say that’s a violation of the city’s antibias policies. CSS maintains the city is violating its religious-freedom rights.

Philadelphia has contracts with about 30 agencies that provide foster-care services for about 5,000 children in the city’s custody. In March 2018, the city halted foster-child referrals to CSS, after published reports of CSS’ anti-LGBT policies. CSS currently provides foster-care services for 25 children who were referred to CSS prior to March 2018. When those children reach adulthood, CSS may have no foster children to serve.

With the help of Becket Fund for Religious Liberty, CSS filed a federal lawsuit against the city in May 2018. After CSS lost on the district-court and appellate-court levels, the agency took its case to the U.S. Supreme Court. On Nov. 4, the high court pondered whether to reverse the appellate court’s ruling and force the city to refer foster children to CSS despite the agency’s anti-LGBT policies.

Justices Clarence Thomas and Brett M. Kavanaugh appeared to be the most hostile to the city’s position. Kavanaugh called the city’s position “absolutist and extreme.” He accused the city of wanting to “pick a fight” with CSS. He also said that resuming child referrals to CSS would be a “win-win” for all parties, noting that same-sex couples could still get services from 29 other foster-care agencies.

Justice Samuel A. Alito Jr. also appeared hostile to the city’s position. “If we are honest about what’s really going on here, it’s not about ensuring that same-sex couples in Philadelphia have the opportunity to be foster parents,” Alito declared. “It’s the fact the city can’t stand the message that Catholic Social Services and the Archdiocese are sending by continuing to adhere to the old fashion view about marriage.” 

The city’s position was presented by attorney Jeffrey L. Fisher. Attorney Neal Kumar Katyal presented arguments for intervenors Support Center for Child Advocates and Philadelphia Family Pride.

Fisher noted that the city could perform its own foster-care services to ensure a bias-free program. Thus, it should be able to ensure a bias-free program among its contractors.

However, CSS attorney Lori H. Windham emphasized that CSS has performed foster-care services in Philadelphia for two centuries and should continue to do so, despite the city’s antibias policies.

Justice Sonia M. Sontamayor and Elena Kagan appeared sympathetic to the city’s position, repeatedly referring to the importance of antibias laws and how those laws help ensure fair treatment for everyone, including women and racial minorities.

Hashim Mooppan, an attorney for the U.S. Solicitor General’s Office, slammed the city’s position. “What the city has done is worse than cutting off its nose to spite its face,” Mooppan declared. “What it is doing is cutting off homes from the most vulnerable children in the city to spite the Catholic Church.” 

Katyal emphasized that the city doesn’t harbor religious animus against CSS. He noted that CSS continues to receive millions of dollars from the city for services other than those in dispute. 

Attorneys react to oral arguments

Philadelphia City Solicitor Marcel S. Pratt issued the following statement in response to the oral arguments:  This case is straightforward. It’s about how we serve the young people in our care and our desire to treat all potential foster parents equally and with dignity. The City of Philadelphia proudly respects and protects all of our residents’ religious freedoms — a commitment that we hold dear. But those freedoms do not allow contractors performing a city service to choose which residents they will serve based on their sexual orientation.

“Because CSS refuses to consider qualified same-sex couples to become foster parents, it does not comply with Philadelphia’s strict non-discrimination laws and policies. City contractors who choose to carry out a public function supported by city taxpayer funds are not legally entitled to contract terms that permit discrimination against some of those same taxpayers. Our non-discrimination terms apply to all contractors, secular and religious agencies alike.

“We appreciated the opportunity to present our case to the court today. The court asked hard questions of both sides, and we are grateful for them. We look forward to the court’s resolution of this important case.”

Patrick Elliott, senior counsel for the Freedom From Religion Foundation, wasn’t optimistic that the city will prevail. “Conservative justices on the Supreme Court do not seem to take discrimination against prospective gay and lesbian foster care parents seriously,” Elliott said, in an email. “Several justices implied that discrimination on the basis of sexual orientation was not as bad as other forms of discrimination. With this inherent bias, the court seems poised to rule in favor of religion over civil-rights protections.”

Jennifer C. Pizer, senior counsel for Lambda Legal, had mixed views about the proceeding. “It’s clear from the questioning that the court has many roads for decision,” Pizer said, in an email. “And it appears that some of the ultra-conservative members of the court believe the case law should be changed to require new, special religious rights to discriminate if an agency has been working in a field in a discriminatory manner for a long time. It has been a settled equality principle that a history of unjust discrimination does not justify continuing that discrimination. The fact that marriage discrimination against same-sex couples has been ended only recently should not be a reason to require government to hire those who continue to object — to do the government’s work. 

“Lawyers for Catholic Social Services kept repeating that it hadn’t actually rejected any same-sex couples because none had applied with them. But as counsel for Philadelphia Family Pride pointed out, families don’t apply to agencies they know will turn them away.  And when families anticipate and fear rejection, they are deterred from applying at all anywhere.  That’s why recent history shows that nondiscrimination rules increase the pool of foster families, which is the best result for children in the system. 

“A couple of the justices characterize the case as calling for a balancing of interests — to allow CSS to continue doing the city’s work with the public’s funds, with same-sex couples seeking fostering opportunities elsewhere. That would require changing the constitutional doctrine that’s been in place for decades. Counsel for the city made clear that such a change easily could make it impossible for government to function through private contractors, and could push government to bring all those functions in-house – and not just child welfare services. It would be a huge shift and probably the opposite of what CSS is seeking. 

“The stakes are high. And especially so for those vulnerable members of society who are served by public programs and often have little ability to search and pick and choose where they might be served. But many questions from the Bench probed the details of Philadelphia’s policy and how the city has operated. It’s quite possible the result will turn on the specific facts of the case, leaving the big constitutional questions for another day.”

Patricia B. Palacios, a D.C.-based attorney, said it’s uncertain how the court will rule.

“Based on the questioning, it appears that the court’s remaining liberal justices will side with the city, while Justices Thomas, Alito, and Kavanaugh will almost certainly vote for Catholic Social Services,” Palacios said, in an email. “The remaining three conservative judges, including [Amy Coney] Barrett, asked questions that were tough on both sides. So it is difficult to predict the end result. There is reason to hope that Chief Justice [John] Roberts and Justice [Neil M.] Gorsuch will side with the  city — given that they sided with the more liberal justices in the court’s recent gay-rights decision. But it is possible that they will seek to balance the competing religious and civil rights at issue in this case and conclude that the exemption sought by Catholic Social Services is merited because same sex-couples are not precluded from being foster parents through other agencies.

“Underscoring what is at stake in this case, both the Acting Solicitor General and Catholic Social Services suggested that while the government has a compelling interest in eradicating racial discrimination, the same may not be true for discrimination against other protected classes, including same-sex couples — with some justices appearing to agree that racial discrimination is afforded unique constitutional protection not available for other types of discrimination. It is unclear how broadly the court will rule here, but it is clear that the future of LGBTQ protections are uncertain with this Supreme Court.”

James K. Riley, a New York-based attorney, wasn’t persuaded by CSS’ arguments. “Catholic Social Services repeatedly emphasized in its lawyers’ arguments to the Supreme Court today that it has been engaged in foster care and adoption programs in Philadelphia for two centuries,” Riley said, in an email. “According to James Madison, Father of our Constitution, such good work does not in and of itself constitute a religious exercise. Madison stated that the support and education of the poor could be motivated by pious charity but such actions are also a public and civic duty.

“In this case, no one is asking CSS to religiously marry a same-sex couple. Instead, the city has contracted with Catholic Social Services to perform public and civic functions for which CSS might also be acting upon its own additional religious or pious motivation. In the end, what is involved is work for the government and that work should be carried out — as the city properly demands — utterly without any discrimination.”

Julie Wilensky, senior staff attorney at the National Center for Lesbian Rights, issued this statement: “It’s hard to overstate the importance of the contracting aspect of this case. CSS argues that when it takes on a government contract, it has a First Amendment right to perform the services based on its religious beliefs. Accepting this argument would have far-reaching implications for government contracting and programs in many other contexts. As counsel for the city put it, you can’t have agencies grafting on new requirements to contracts that they themselves signed. Justice Kavanaugh framed this case as a conflict between religion versus same-sex marriage. But counsel ably responded that the city really sees this as religious versus religion. If agencies can use religious criteria when carrying out their contacts, they could refuse to serve people of a certain religion, or only serve people of a particular religion. Justices Kavanaugh and Alito kept returning to the fact that CSS had not turned away any same-sex couples seeking to become foster parents, and that same-sex couples in Philadelphia could simply go to other agencies. But as counsel pointed out, one agency in Philadelphia previously turned away a same-sex couple, and we don’t know how many agencies would discriminate based on sexual orientation (or any other protected characteristic) if the court recognizes an exemption here. And it’s no comfort to people who justifiably fear discrimination to tell them they can simply go elsewhere.”