U.S. Supreme Court rules against city in foster parents case

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The Supreme Court. (Photo: Scott Drake)

The decision was unanimous. In a 9-0 ruling bound to have a long-ranging impact, the U.S. Supreme Court found the City of Philadelphia violated the First Amendment rights to religious freedom of Catholic Social Services (CSS) in the case of Fulton v. City of Philadelphia.

The Court determined that Philadelphia’s refusal to contract with Catholic Social Services for the provision of foster care services unless CSS agrees to certify same-sex couples as foster parents violates the free exercise clause of the First Amendment.

The eagerly anticipated decision, written by Chief Justice John Roberts, ruled that Philadelphia cannot bar CSS from screening potential foster parents even though the agency refuses to work with same-sex couples, in violation of Philadelphia’s non-discrimination ordinance.

The importance of Fulton to religious freedom issues was signaled by the volume of opinions written in the case. Justices Breyer, Sotomayor, Kagan, Kavanaugh and Barrett joined Roberts.

Justice Barrett filed a concurring opinion, in which Justice Kavanaugh joined, and in which Justice Breyer joined in all but the first paragraph. Justice Alito filed an opinion concurring in the judgment, in which Justices Thomas and Gorsuch joined. Justice Gorsuch filed an opinion concurring in the judgment, in which Justices Thomas and Alito joined.

Two lower court rulings had previously found in favor of the city, including the United States Court of Appeals for the Third Circuit, in Philadelphia, which found unanimously for the city.

Agreement with the decision was far from unanimous. Several Court watchers called the decision another clear victory for the religious right. A recent study published in the Supreme Court Review found that the Court has ruled in favor of religious claimants 81 percent since Chief Justice John Roberts’ appointment in 2005. In the 52 years prior, it was closer to 50 percent.

Philadelphia Rep. Brian Sims told PGN, “Today’s Supreme Court ruling regarding Catholic Social Services and their homophobia and discrimination is wrong.”

Sims, an attorney, also said, “While it’s incredibly disappointing to see the Court rule in this way, I do take comfort in knowing that this ruling applies narrowly to this case and does not permit discrimination based on religious belief. While the Catholic Church may pretend it has any moral authority regarding the safety of children, Philadelphians, the LGBTQ community, and those who support loving, caring families still know better and will continue to do better.”

Adrian Shanker, executive director of Bradbury-Sullivan LGBT Community Center, told PGN in a statement, “Today’s decision is a glaring reminder that federal non-discrimination protections are needed for LGBTQ+ Americans now more than ever. The U.S. Supreme Court punted on a critical issue impacting our community and issued a narrow ruling on a technicality.”

In August 2020, Bradbury-Sullivan LGBT Community Center joined as Amici in a brief filed by Lambda Legal in support of the City of Philadelphia.

The Human Rights Campaign chose to take a surprising and what will likely be seen as a controversial point of view on the Court’s ruling, claiming it as an actual win for LGBTQ people.

“Though today’s decision is not a complete victory, it does not negate the fact that every qualified family is valid and worthy — children deserve a loving, caring, committed home,” said Human Rights Campaign President Alphonso David.

David reaffirmed the importance of “providing homes to the thousands of children in the child welfare system” and asserted “our next step is to pass the Equality Act.”

The Fulton case began in March 2018 when the city of Philadelphia learned that two of the agencies it hired to provide foster care services to children in the city’s care would not, based on their religious objection, accept same-sex couples as foster parents. Philadelphia informed the agencies that it would no longer refer children to them unless they agreed to comply with nondiscrimination requirements that are part of all foster care agency contracts.

One of the agencies agreed to do so. The other, CSS, sued the city, claiming the Constitution gives it the right to opt out of the non-discrimination requirement.

In refusing to renew CSS’s longtime contract, the city stated that CSS was in violation of the contract’s stipulation that contractors comply with the city’s laws including the non-discrimination policy.

In the November 4, 2020 oral arguments before the Supreme Court, attorneys for the city maintained what their contention has always been: Independent contractors hired by the city, like CSS, are bound by the city’s policies of fairness — in this case, offering services to all prospective parents regardless of sexual orientation. They cannot choose to ignore nor revise existing non-discrimination policy to suit their own agenda.

CSS disputed that claim, asserting that since lesbian and gay couples had not actually applied to the agency to be foster parents, the question was moot. Thus, CSS’s attorneys argued, barring the agency from placements was in fact a violation of their First Amendment rights to religious freedom based on the free exercise clause.

CSS also said they would have suggested other agencies to prospective lesbian and gay couples.

The Supreme Court agreed with CSS, focusing on the issue of neutrality: Was the city acting in good faith when it ended the CSS contract, or did it target CSS specifically because the agency is Catholic and has religious beliefs at odds with the city’s non-discrimination policies?

The decision stipulates that governments, like the city of Philadelphia, can enforce non-discrimination laws, but they must do so neutrally. The city of Philadelphia violated CSS’s First Amendment rights by not maintaining neutrality in its application of its non-discrimination laws.

This is, even by the current Court’s standards, a stretch. However that is how the Supreme Court has been ruling on instances of religious freedom, as PGN has previously explored.

Cases stemming from the Covid-19 pandemic have reiterated the Court’s take that religious freedoms are under assault from myriad angles and thus must be protected at all costs. The Court ruled in favor of not just houses of worship breaking state and local government rules on the number of people allowed to congregate indoors, but extended that ruling to pastoral groups in private homes.

Where the Court used to focus its attention on maintaining a clear separation between Church and State, which the First Amendment supports, a number of high profile cases in recent years have shown the Court has blurred the line. 

In the Masterpiece Bakeshop case, which is closely aligned to Fulton, the Court argued in 2017 that public accommodations laws were not violated by the owner when he refused to design a custom wedding cake for a gay couple based on the owner’s religious beliefs.

In that 7-2 ruling, the majority found exactly as it has in Fulton: That by failing to act in a manner neutral to religion, the Colorado Civil Rights Commission violated the First Amendment rights of the owner, Jack Phillips, when it found that Phillips had violated the Colorado Anti-Discrimination Act when he discriminated against the couple. As in Fulton, lower courts had found for Colorado against Masterpiece.

Justice Anthony Kennedy wrote the decision. The dissent was authored by Justice Ruth Bader Ginsburg with Sonia Sotomayor agreeing.

CSS borrowed heavily from the Masterpiece ruling in its arguments.

It is an error to presume Fulton is not far-reaching, as every new case in which the Court rules against LGBTQ rights — particularly as a matter of religious freedom — threatens LGBTQ civil rights.

At the beginning of the current Supreme Court term in October 2020, Justices Samuel Alito and Clarence Thomas argued for revisiting the 2015 ruling in Obergefell v. Hodges, which legalized same-sex marriage.

“By choosing to privilege a novel constitutional right over the religious interests explicitly protected in the First Amendment, and by doing so undemocratically, the court has created a problem that only it can fix,” Justice Thomas wrote, in an opinion joined by Justice Alito.

The two justices who had dissented from Obergefell in 2015 said that the ruling had “invented a right with no basis in the text of the Constitution.”

“Due to Obergefell, those with sincerely held religious beliefs concerning marriage will find it increasingly difficult to participate in society,” Justice Thomas wrote.

Thomas asserted that Obergefell had stigmatized people of faith. “Since Obergefell,” he wrote, “parties have continually attempted to label people of good will as bigots merely for refusing to alter their religious beliefs in the wake of prevailing orthodoxy.”

The answer to many of these issues appears to lie with Congressional action, according to Shanker. “It’s beyond time to fully protect LGBTQ+ Americans under the law, no matter where they live or travel,” Shanker said. “The Equality Act, which sits before the U.S. Senate once again, would ensure these common-sense protections at the federal level, and the Pennsylvania Fairness Act would do the same at the state level.”

Shanker added, “Policymakers should take this moment to act swiftly to protect LGBTQ+ constituents from discrimination.”

In the fall, another LGBTQ issue, about so-called “bathroom bills” is slated to come before the Court with the case of Gavin Grimm.