A lawsuit that pits religious freedom against gay rights — and has been percolating through the court system and national news for two years — is officially on the Supreme Court’s docket.
Last month, the high court agreed to hear Fulton v. City of Philadelphia, which on the surface is about whether faith-based child welfare organizations can reject LGBTQ families and others whom they consider to be in violation of their religious beliefs. However, legal experts say the case could have a significant impact on not just parental rights but also nondiscrimination protections more broadly.
Carlos Ball, a professor at Rutgers Law School and author of “The First Amendment and LGBT Equality: A Contentious History,” said the “potential impact is huge.”
“If the Supreme Court holds that religious organizations have a constitutional right to be exempted from anti-discrimination laws when they receive government money to conduct certain activities — such as placing foster care children with foster parents — that will significantly limit the impact and efficacy of civil rights laws,” Ball said. “It will essentially allow anyone who has a religious basis for discriminating to claim that they are constitutionally exempt from the application of civil rights laws.”
Fulton v. City of Philadelphia: A primer
Catholic Social Services sued Philadelphia in 2018 after the city ended its contract with the faith-based service provider upon learning the organization would not consider same-sex couples as potential parents for foster children. The organization argued that to provide these services to gay couples violated its constitutional rights to free religious exercise and free speech.
Catholic Social Services lost the case in district court and then appealed to the U.S. Court of Appeals for the Third Circuit, which unanimously affirmed the lower court ruling in April 2019.
While Fulton v. Philadelphia was working its way through the lower courts, the Supreme Court delivered a victory to Christian baker Jack Phillips, owner of Colorado’s Masterpiece Cakeshop, in another case dealing with gay rights and religious liberty.
The ruling for Phillips was narrow and did not indicate how the high court understands the constitutional question of whether religious individuals acting in good faith are entitled to exemptions from nondiscrimination laws, according to Ball.
“It is possible that the court will use this case to answer that question,” he said.
Specifically, Ball said, the court might reconsider its decision in the 1990 landmark case Employment Division v. Smith. That case involved a criminal prohibition on the smoking of peyote, which some Native American individuals consider as part of their religious practice. The court found that “there is no constitutional right to an exemption from a generally applicable law,” Ball said, but added that the decision was controversial.
“Thirty years later, there are many people, especially conservative supporters of religious freedom, who want the court to reconsider Smith,” he said.
With the 2018 retirement of Justice Anthony Kennedy, who was considered a reliable advocate of LGBTQ rights, the political center of gravity has shifted to the right in the Supreme Court.
“It is very possible that there are five votes to overrule Smith,” Ball said.
He also noted it’s possible for the court, as it did in Masterpiece, to rule narrowly on whether or not the city manifested anti-religious bias in its treatment of Catholic Social Services.
“There were some statements made by city of Philadelphia officials that could be interpreted as expressing some disagreement with conservative Catholic views,” he added.
Discrimination 'in every state'
If the high court sides with Catholic Social Services, discrimination against LGBTQ people could "become part of the public child welfare system," according to Leslie Cooper, deputy director of the American Civil Liberties Union's LGBT and HIV Project.
“LGBT people would face discrimination in every state in the country, because many states partner with private agencies,” she explained.
Eleven states have laws on the books allowing for state-licensed agencies to claim religious exemptions in the foster and adoption process, and others are considering similar measures. Most recently, Tennessee Gov. Bill Lee signed a bill that permits adoption agencies to refuse to work with families if doing so would “violate the agency’s written religious or moral convictions or policies.”
“When you allow people to discriminate against these couples, you deprive children of good moms, dads, families, who are going to love them.”
Rep. Sean Patrick Maloney, D-N.Y.
In Missouri, Republican legislators introduced House Bill 2043, or the Adoption Protection Act, in January. The proposal would allow child placement agencies that receive taxpayer dollars to refuse to place children in a home if the household “violates such agency’s sincerely held religious beliefs.”
The year before, in January 2019, the Trump administration granted a waiver to Miracle Hill Ministries in South Carolina, allowing it to deny services to same-sex or non-Christian couples and continue as a state-supported foster care agency.
LGBTQ advocates say these laws and policies exacerbate the already critical problem of a lack of available foster families. In 2017, there were about 443,000 children in foster care across the United States, according to the Department of Health and Human Services. Each year, some 50,000 children are adopted through the child welfare system, but about 20,000 others “age out” before being placed with an adoptive family, the department reports.
“We already have a severe shortage of foster families willing and able to open their hearts and homes to these children,” Cooper said. “Allowing foster care agencies to exclude qualified families based on religious requirements that have nothing to do with the ability to care for a child such as their sexual orientation or faith would make it even worse."
Research has shown that LGBTQ families foster and adopt at higher rates and are more likely to take in older, special needs and minority children. Over 21 percent of gay couples are raising adopted children, compared with 3 percent of straight couples, and nearly 3 percent of gay couples have foster children, compared with 0.4 percent of straight couples, according to a 2018 report from the Williams Institute at UCLA Law.
According to Catholic Social Services, which had been one of 30 organizations that contracted with the city of Philadelphia for child placement services, the problem with the foster care system is not a lack of families but a lack of placement organizations.
“We need to have a diverse group of agencies to meet the needs of diverse families,” Lori Windham, senior counsel at Becket, the firm representing Catholic Social Services, said. “Shutting down Catholic Services is not going to make the crisis in foster care any better.”
When asked whether a victory could lead to increased discrimination against LGBTQ families, Windham pushed back.
“That’s wrong,” she said flatly. “This is about ensuring that we have all hands on deck to help foster kids.”
Rep. Sean Patrick Maloney, D-N.Y., an openly gay father of three, is a sponsor of the Every Child Deserves a Family Act. The bill, reintroduced last year, would prohibit discrimination in child welfare services by any agency receiving federal funding. During testimony on Capitol Hill last week, Maloney expressed concern that policies that allow publicly funded agencies to apply discriminatory criteria could lead to the exclusion of LGBTQ families from foster care and adoption.
“When you allow people to discriminate against these couples, you deprive children of good moms, dads, families, who are going to love them,” he said. “When you dress this up as religious liberty, you simply sanction discrimination and deprive those children of a home that they deserve.”
LGBTQ rights: What’s at stake?
If the Supreme Court sides with Catholic Social Services, the ruling could go beyond the rights of LGBTQ people to adopt or foster and impact nondiscrimination protections more broadly, Cooper and Ball both warned.
Unlike the Masterpiece Cakeshop case, this one concerns a public service, which Cooper said is a notable distinction.
“In Masterpiece, the bakery argued that the free exercise clause allows a private business to opt out of nondiscrimination law based on religious objection to that law,” Cooper said. “CSS is saying that the free exercise clause gives it a right to get a government contract and use its religious criteria to opt out of nondiscrimination requirements that the city has for its own programs.”
A broad ruling in favor of Catholic Social Services could mean the organization would have the ability to turn away individuals and families seeking to participate in a government program.
The ruling would have implications for LGBTQ rights specifically and the right to be free from discrimination in general, Ball said.
“That right may be in danger if private organizations are able to use public money to make distinctions in who they serve,” he explained. “I think that's very dangerous.”
A ruling for Catholic Social Services that permits "exceptions to the application of antidiscrimination law" for those who contract with the government could potentially open the door to discrimination on the basis of other characteristics as well, Ball said, adding that "race, sex, disability, and most ironically of all in this context, religious discrimination” could be fair game.
The Supreme Court will hear Fulton v. City of Philadelphia during its next term, which begins in October. Before then, however, the court is expected to rule on another major LGBTQ rights issue: whether LGBTQ workers are entitled to nondiscrimination protections in employment under Title VII of the Civil Rights Act of 1964.