Supreme Court to Consider LGBTQ Rights and Foster Care the Day After Election

The Supreme Court will consider anti-discrimination laws and LGBTQ rights on Wednesday, taking up a case that could have a significant impact on state and local governments’ abilities to define their contracts with religious organizations providing social services. 

The case in question, Fulton v. City of Philadelphia, revolves around a Catholic adoption agency in Philadelphia that refused to place foster children with same-sex parents. The agency, Catholic Social Services, had a contract with the city to screen foster parents, but used its own religious criteria in the evaluation process. 

In 2018, after a Philadelphia Inquirer article described the agency’s policy, city officials declined to renew CCS’ contract, saying that their practices were discriminatory and in violation of a city law that protects people from prejudicial treatment on the basis of their sexual orientation. The city council then called for the adoption of new language in its social services contracting policies that specifically addressed “discrimination that occurs under the guise of religious freedom.”

The agency, along with foster parents it serves, like the named petitioner Sharonell Fulton, sued the city. They claim that the city has violated their First Amendment right to religious expression.

The case, which will mark the first major case that new conservative Justice Amy Coney Barrett will consider, is similar to others in recent years that have pitted LGBTQ couples against religious business proprietors that deny them service. In 2018, for example, the Supreme Court sided with a bakery in Colorado that refused to create a wedding cake for a gay couple. In Fulton, the court will have to decide whether faith-based organizations that discriminate against LGBTQ people are still eligible to provide taxpayer-funded government services.

The case could have a big impact beyond the foster care system. Many state and local governments contract with private agencies to provide social services, such as shelter for the homeless, refugee resettlement assistance, and substance use treatment.

Foster care advocates and child welfare groups have warned that allowing agencies to discriminate against gay couples will further strain an already overwhelmed system caring for nearly than 440,000 foster kids. LGBTQ families foster and adopt at much higher rates than heterosexual couples; over 20% of gay couples with children have adopted kids and 3% are fostering children, compared to 3% of straight couples with children who have adopted and 0.4% who are fostering.

Religious rights groups and conservative organizations, along with the Trump administration, are standing behind Catholic Social Services. States like Nebraska, Arizona, and Ohio have also backed the agency, arguing that working with a wide variety of foster placement organizations provides a broader recruiting net for potential parents because they “target different audiences.” (Nebraska was the last state with a law banning LGBTQ couples from serving as foster parents, a measure that was struck down by the state Supreme Court in 2017.) Solicitor General Noel Francisco, representing the Trump administration in a brief submitted to the court in June, made a constitutional argument, saying that Philadelphia “impermissibly discriminated against religious exercise” and employed “unconstitutional hostility toward Catholic Social Services’ religious beliefs.”

Civil liberties organizations like the ACLU have said that the case isn’t about “religious liberty” but “government-funded discrimination” where contractors can “selectively refuse to provide” services. Leslie Cooper, deputy director for the ACLU’s LGBT & HIV Project, said in a statement that if the court sides with the adoption agency, “it would be devastating for millions of people who rely upon critical government services.”

“Not only will the 440,000 children in our child welfare system lose out on qualified parents who are LGBTQ or a different faith than the agency, but people in need of taxpayer-funded services like homeless shelters or food banks could also be turned away because they are LGBTQ, Jewish, Mormon or otherwise don’t meet the provider’s religious criteria,” Cooper said. 

When the case was heard by the 3rd U.S. Circuit Court of Appeals, the three-judge panel relied on judicial precedent from the 1990 case Employment Division v. Smith. That ruling established that laws restricting religious exercise are allowed as long as they are “generally applicable” and aren’t written to target specific religious practices.

Catholic Social Services has asked the court to overturn the Smith precedent, something that could be possible with a 6-3 conservative majority that, with the addition of Barrett, may be more likely to side with the religious group. In the broadest possible ruling in favor of the adoption agency, Smith could be overturned and any religiously affiliated business or individual could raise a religious objection to nondiscrimination laws. In the narrowest ruling in favor of the adoption agency, the justices could decide that Philadelphia can’t require foster placement agencies to follow nondiscrimination laws to receive city contracts. A ruling in the middle would likely impact only government-contracted social service agencies whose practices run counter to state and local nondiscrimination laws.`

Eleven states currently allow state-licensed child welfare agencies to deny foster placements to parents whose sexual orientations conflict their religious beliefs.

Philadelphia Solicitor Marcel S. Pratt, in a statement released in February when the Supreme Court agreed to take up the case, said the city is “proud of our longstanding commitment to supporting freedom of religion and preserving equal access to services for all people—regardless of their race, national origin, religion, age, sex, disability, sexual orientation, or gender identity.”

“This case is ultimately about serving the youth in our care,” Pratt said.