What’s at Stake?
A taxpayer-funded foster care agency, Catholic Social Services (CSS), is suing the city of Philadelphia, claiming the U.S. Constitution gives it the right to avoid the city’s nondiscrimination ordinance and reject same-sex couples as foster parents. The city had learned that two agencies it hired to provide foster care services for children were not accepting LGBTQ parents based on religious objection, and informed the agencies it would not refer children to them unless they agreed to comply with nondiscrimination requirements as government contractors. One agency agreed to comply. CSS sued the city. Two lower courts have rejected CSS’ claims that the city had violated its Constitutional rights. CSS appealed to the U.S. Supreme Court, which agreed to hear the case.
The fundamental question driving Fulton v. City of Philadelphia is whether governments have a right to demand contractors receiving taxpayer money adhere to nondiscrimination laws and ordinances, or whether there should be special loopholes that allow certain religious groups to violate those nondiscrimination policies.
If the Supreme Court rules in favor of the agency, Catholic Social Services, it could not only prolong a child’s time in a group home rather than a loving foster home, as it limits the available pool of qualified parents, it could open the door to government contractors being allowed to use religion as a basis for sweeping discrimination in many other areas, and against many other groups of people.
The Court could limit its ruling, as it did in the 2018 Masterpiece Cakeshop case, to only apply to the relationship between the CSS and Philadelphia. Or, it could allow wider interpretation to include allowing religious justifications for city, state, and federal contractors to refuse service to not just LGBTQ people, but single parents, unmarried heterosexual couples, or other religions. For example, a Catholic homeless shelter could refuse entry to someone who is Jewish or Muslim, or to a single mother and her children.
A wider interpretation could also mean a broad license to discriminate in other critical taxpayer-funded services like homeless shelters, hospitals, disaster relief agencies and food banks. Many nonprofit and for-profit businesses that accept taxpayer money for public services could claim a legal right to discriminate.
The consequences could be vast: If a Catholic foster care agency is allowed to circumvent the law by refusing to place children in homes with LGBTQ parents, what’s keeping a different group from refusing services to people based on other protected classes like race, religion, or national origin? Does it open the door for retail businesses to use religious justification to put signs in their windows saying they won’t serve certain types of people? And if religious groups are able to simply ignore one existing law (such as a nondiscrimination ordinance), what other laws will they be able to break by citing religious freedom – laws governing public safety like building codes and food safety requirements? How will state and local governments set and enforce the terms of its contracts, even when paying with taxpayer money?
Case Background: Fulton v. City of Philadelphia
In March 2018, the city of Philadelphia learned through local news reporting that two of the agencies it contracted with for foster care services refused to place children with LGBTQ families for religious reasons. Citing local nondiscrimination ordinances, the city asked the agencies to change their policies or risk losing their government contracts funded by taxpayers. One of the agencies complied, but the other—Catholic Social Services—sued the city. The basis of CSS’s legal claim is that the Constitution protects freedom of religion. However, in this case, no government official is preventing the private company from continuing to do business—in fact, the city continues to contract with CSS for some services, like operating group homes. The only thing that changed is that the city decided to no longer refer foster children to the agency. CSS argued the city’s nondiscrimination law and contract were unconstitutional, that its religious beliefs give it the right to refuse to certify same-sex couples as foster parents, and that it has a right to keep receiving taxpayer funds even while discriminating.
Impact on Children
About 424,000 children are in the child welfare system across the U.S. on any given day. Nearly a quarter of them are in group homes because there is no family available to care for them. The problem is worsened by policies from the Trump administration which allow government-contracted child welfare agencies to turn away potential foster and adoptive parents because they do not share the agency’s religious beliefs. Child welfare experts say these policies mean more foster children spend more time in group homes as agencies turn away qualified foster parents.
Research has shown that LGBTQ youth are overrepresented in the foster care system. For an agency to refuse to place children with LGBTQ families doesn’t just lower the number of potential homes available to children in the foster care system, it also potentially reduces opportunities for LGBTQ youth to find safe and affirming homes.
According to the U.S. Department of Health & Human Services, “a high percentage of LGBTQ youth in foster care experience further verbal harassment or even physical violence after they are placed in out-of home care.” The numbers say it all:
- As many as 56 percent of LGBTQ youth have reported fleeing foster or group home environments and becoming homeless, preferring to live on the streets.
- A Williams Institute study among Los Angeles foster youth found that nearly 1 in 5 (19.1%) children and teens in foster care are LGBTQ, a rate about twice as high as the percentage of LGBTQ youth not in the child welfare system.
- A study for the journal Child Welfare also found that LGBTQ youth are placed into new foster and group homes at rates twice as high as other foster kids—likely related to difficulties in finding LGBTQ-affirming homes.
Because of statistics like these, the City of Philadelphia is simply trying to protect foster youth by refusing to refer them to agencies that won’t provide them with safe and affirming placements. According to the court brief the city filed in 2019, “excluding qualified parents based solely on their sexual orientation…would do a disservice to children in the foster system.” The city cited a “significant LGBTQ youth population” in its child welfare cases, and said it did not want to send a signal to those kids that “we won’t support your rights as an adult.”
Lower courts have unanimously ruled in favor of the City of Philadelphia. In July 2018, the U.S. District Court for the Eastern District of Pennsylvania denied CSS’s request for an injunction, saying that the agency can’t argue its religious basis made it a target because the nondiscrimination ordinance applies to all city contractors. Then in April 2019, the Third Circuit court ruled in favor of the city as well. CSS has continued to pursue the case all the way to the Supreme Court.
How the Fulton Ruling Could Predict the Direction of the New SCOTUS
Fulton v. City of Philadelphia is one of the first cases that will be argued before the newly conservative-majority court. With Amy Coney Barrett being confirmed as President Trump’s third Supreme Court nominee, the nation’s top court now leans strongly to the right. On November 10, the Monday following the Fulton arguments, the court will convene again to decide whether to overturn the Affordable Care Act—another case that presents dire consequences for LGBTQ people, especially transgender Americans. Anyone interested in the results of that case should closely watch Fulton; it’s likely the court’s new direction will be revealed in the arguments here.
Newly confirmed justice Amy Coney Barrett has ties to the conservative legal group Alliance Defending Freedom (ADF); the same group is responsible for draft legislation that informed a wave of anti-transgender “bathroom bills” and was founded by members of the Meese Commission and Focus on the Family. ADF was also designated a hate group in 2016 by the Southern Poverty Law Center, which cited the organization’s longstanding efforts to criminalize gay sex, fight the “homosexual agenda,” and link homosexuality to pedophilia. Justice Barrett also served as a trustee at a private school that reportedly discriminated against LGBTQ families, refusing enrollment to children of same-sex couples.
Notes for Journalists
- These types of cases are not about religious “freedom” or “liberty” but about religious exemptions from existing law. Here is a GLAAD tip sheet on covering religious exemptions. Just like how the Masterpiece Cakeshop case wasn’t really about cakes, Fulton isn’t just about foster care. What’s really being argued is whether a business or group that has a government contract and receives taxpayer money can break the law using a personal interpretation of their religion as an excuse. This case also isn’t limited to Philadelphia, or to Catholic groups. It’s important to keep an eye on the broader impact at stake.
- Remember that religious beliefs are personal and varied. Avoid a false frame of religious faithful vs. LGBTQ – up to 20% of LGBTQ Americans identify as Catholic, meaning one in five LGBTQ people shares the same faith as Justices Barrett, Kavanaugh, Sotomayor, Roberts, Alito and Thomas. About half of LGBTQ Americans are Christians.
- Likewise, religious doesn’t mean anti-LGBTQ. Majorities of all major U.S. religious groups support laws protecting LGBTQ people, including 71% of white Catholics. Many Catholics—including Pope Francis—urge the church to become more inclusive and accepting of LGBTQ people. Catholic Social Services has a right to disagree with the Pope, but it does not have a right to a taxpayer-funded city contract.
- In similar cases, courts have ruled against faith-based child placement agencies that receive government funding. Two cases brought on behalf of LGBTQ prospective parents by Lambda Legal (Marouf v. Azar and Rogers v. HHS) resulted in federal trial courts ruling in favor of the LGBTQ couples.
- Consider speaking with parenting experts and researchers who have studied how qualified LGBTQ parents raise healthy children and can affirm that a parent’s sexual orientation does not adversely affect a child’s development.
- November 4th is when the Supreme Court will hear oral arguments in the Fulton case; a decision from the Court won’t come until late May or June 2021.
- The ACLU’s Gabriel Arkles on October 26
- The Hill quotes GLAAD president and CEO Sarah Kate Ellis
- NBC Out dove into the newest justice’s “alarming” history of supporting religious exemptions in favor of discrimination
- Crosscut: Amy Coney Barrett and the false fight between religion, LGBTQ rights. As we debate the Supreme Court nominee, let’s remember: Many LGBTQ people are religious, and many religions have affirmed their rights.
Must-Read Court Briefs: Fulton v. City of Philadelphia
- Amici brief supporting City of Philadelphia filed by the Anti-Defamation League along with groups that have a stake in discrimination (like Japanese American Citizens League and the Sikh Coalition)
- Brief supporting the city filed by religious groups, including various Christian denominations along with Jewish, Muslim, and Interfaith groups
- Brief filed by Family Equality and PFLAG
- Brief filed by prospective foster parents who were discriminated against by child-placement agencies using religion as justification
- Brief filed by community centers and nonprofits that provide direct services to LGBTQ youth
- Brief in support of city filed by 27 people of Roman Catholic faith who cite, among other things, Pope Francis’s own message of inclusion towards LGBTQ people
- Brief filed by LGBTQ advocacy groups including HRC, Freedom for All Americans, Movement Advancement Project, Transgender Law Center, more
- Brief in support of the city filed by leading national medical and mental health professional associations like the American Medical Association and American Psychological Association
Additional Experts and Analysis:
Lambda Legal: https://www.lambdalegal.org/about-us/staff/currey-cook
Family Equality and Movement Advancement Project: https://www.familyequality.org/resources/foster-and-adoption-laws/
Email firstname.lastname@example.org with any coverage needs or with questions about the case and its impact.