The U.S. Supreme Court is expected to announce its ruling in Fulton v. Philadelphia, a landmark case about whether taxpayer-funded government programs should be allowed to use religion to exempt themselves from nondiscrimination laws and ordinances.
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 based on religious beliefs. 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, Bethany Christian Services, responded by changing its policy nationwide, allowing placements with LGBTQ families. CSS, however, responded by suing 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 heard arguments on November 4th from attorneys representing the city and the federal government, and Becket Fund for Religious Liberty attorneys that argued on behalf of CSS and its clients.
What’s at Stake?
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. There are many states that require government contractors to adhere to nondiscrimination law; in fact, Bethany Christian Services had already been complying with such laws in 12 states—placing children with qualified LGBTQ families—before announcing its overall policy change this March.
If the Supreme Court rules in favor of 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 also open the door to government contractors providing other services like food and shelter to use religion as a basis to avoid following nondiscrimination laws.
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?
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 or even just about anti-LGBTQ discrimination. 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.
- 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.
Religion Doesn’t Have to Mean Discrimination
In March 2021, Bethany Christian Services president and CEO Chris Palusky sent an email to the Michigan-based evangelical company’s 1500 staff members announcing that the foster care and adoption agency would begin including LGBTQ families in its child placement services. “We will now offer services with the love and compassion of Jesus to the many types of families who exist in our world today,” Palusky said in the email. “We’re taking an ‘all hands on deck’ approach where all are welcome.”
A number of religious groups and faith-based child welfare organizations filed briefs in the case in support of the city of Philadelphia. From Lutheran Family Services of Illinois and Baptist Joint Committee For Religious Liberty, to briefs filed by Jewish coalitions and lay Roman Catholics, these documents show that many people of faith oppose discrimination against LGBTQ prospective parents.
The majority of American Catholics consistently support same-sex marriage, according to Gallup polling and the Pew Research Center. Even Pope Francis himself has expressed support for same-sex civil unions, stopping just short of endorsing full marriage equality. CSS might disagree with the Pope’s famous “who am I to judge” approach to LGBTQ couples, but it doesn’t have the right to break a city contract.
Impact on Children
While Bethany and CSS both initially declined to work with same-sex parents, both organizations have long worked with LGBTQ youth, as a 2018 Philadelphia Inquirer report pointed out. By refusing to place queer and trans youth with families that reflect their own identities, child services agencies risk sending the message to LGBTQ youth that they themselves are not capable of good parenting or of having families of their own.
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 was worsened by a Trump administration rule that did away with nondiscrimination protections in child welfare programs funded by the Department of Health and Human Services; this February, a court issued a stay halting that rule through August 2021. 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.
- Studies have shown that over 30 percent of youth in foster care are LGBTQ and about 5 percent are transgender. That’s an LGBTQ population about three times higher and a trans population 5 times higher than youth not in foster care.
- 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.
The Fulton Ruling And The New SCOTUS
Fulton v. City of Philadelphia was one of the first cases argued before the newly conservative-majority court. With Amy Coney Barrett confirmed in 2020 as President Trump’s third Supreme Court nominee, the nation’s top court now leans strongly to the right. 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. This spring, we are seeing Barrett’s first votes unfurl.
During the November 4th oral arguments, some of the court’s more conservative justices raised comparisons; Barrett asked whether states could compel doctors to perform abortions, and whether an agency with a religious objection to interracial marriage would be able to receive an exemption from nondiscrimination law. Continuing that thread, Justice Samuel Alito referenced “honorable and respectable reasons for continuing to oppose same-sex marriage” raised during the Obergefell case, and asked whether that would also apply to interracial marriage. Overall, the court repeatedly referenced past decisions and laws opposing discrimination for other groups, and asked why LGBTQ people should be held to different standards when it comes to bias against them. The justices also dove into contract law, noting that it would be difficult to expect city contractors to adjust contract requirements to their own needs rather than just following the stipulations the city set forth that apply to all contractors.
But the arguments were also packed with challenges. Justice Brett Kavanaugh accused the city of Philadelphia of “looking for a fight,” despite the fact that it was CSS that sued the city and not the other way around. Alito suggested that the case wasn’t about LGBTQ couples, but about resentment against the Catholic Church for adhering to old-fashioned views about marriage. And Justice Breyer struggled with compromises, asking whether the city couldn’t simply take a same-sex couple rejected by CSS and refer them to another agency that would work with them. Or, Breyer suggested, couldn’t CSS believe whatever it wanted about an LGBTQ couple but still find them to be qualified as foster or adoptive parents?
It’s unclear which way the court will rule in Fulton this month. But one thing is remarkable: the court now has several major precedent cases about LGBTQ equality to refer to. Justices brought up the same-sex marriage case Obergefell and the anti-LGBTQ discrimination case Masterpiece Cakeshop alongside past decisions on racial discrimination (Loving, Bob Jones) and even precedents on gender discrimination in access to contraception (Hobby Lobby, Zubik.) This showed how much influence each Supreme Court decision has on its descendents, and just how important the Fulton decision could be as well.
Other Notable SCOTUS Decisions
This June, the Supreme Court is also expected to rule in California v. Texas, a case that questions whether the Affordable Care Act is in violation of the constitution. If the court rules against the ACA, nondiscrimination protections in healthcare that currently fall under the ACA’s Section 1557 rule could be disrupted—namely, the inclusion of sexual orientation and gender identity (SOGI) under the definition of ‘sex’ discrimination. Those protections have already been see-sawed by Trump administration rollbacks followed by Biden’s restoration of the SOGI aspect of the nondiscrimination rule on May 10. The court will also issue an opinion in Brnovich v. DNC, which could determine whether states can continue to engage in voter restrictions that unfairly target or impact minority groups. While the case is largely about racial discrimination in voting, the court’s final determination could affect fair access to voting for all Americans, including LGBTQ voters.
- Over 30 percent of youth in foster care are LGBTQ
- LGBTQ youth rejected by parents enter the foster care system
- Pose star Indya Moore shares her own experience as a trans foster youth
- TIME frames Fulton as deciding the “fate of the most vulnerable” kids
- 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/
Children’s Rights: https://www.childrensrights.org/wp-content/uploads/2019/04/2019.02.12-LGBTQ-Youth-in-Unstable-Housing-and-Foster-Care.pdf
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