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Court's foster care ruling has experts, advocates split on potential LGBTQ impact

Critics of the ruling say it will embolden other religious social services providers to discriminate, while others say its impact will be muted.
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Legal experts and advocates are split on what a decision Thursday by the Supreme Court on the rights of religious groups means for LGBTQ rights in the near term.

The court ruled unanimously in favor of Catholic Social Services, a religious adoption agency that wanted an exemption from Philadelphia's nondiscrimination law, which would have required the agency to allow LGBTQ couples to adopt.

Experts say the ruling was much narrower in scope than it could have been. The court could have ruled that religious social services providers contracted by governments are broadly exempt from nondiscrimination laws, which would have allowed them to refuse to serve LGBTQ people, among other groups.

Rather, the court ruled that Philadelphia violated the Free Exercise Clause and discriminated against the agency in applying its licensing process, which allows contractors to request exemptions to parts of the contract.

Though advocates are split on the decision's impact, they agree on one thing: Thursday’s ruling demonstrates a pattern of the high court taking the side of faith-based organizations and businesses without answering the larger question of whether they have a right to discriminate against lesbian, gay, bisexual, transgender and queer people.

Some advocates worry about how the decision could affect future cases, and the message it sends to LGBTQ adoptive parents and LGBTQ kids in the foster care system.

Not a broad 'license to discriminate'

The court's ruling in Fulton v. City of Philadelphia is similar to Masterpiece Cakeshop v. Colorado Civil Rights Commission in 2018, when the justices ruled in favor of a baker who refused to make a wedding cake for a same-sex couple. Like in Fulton, the court didn't answer the broader question of whether the baker had a religious right to refuse to serve the couple, but instead ruled that the Colorado Civil Rights Commission was "hostile" toward the baker's religious beliefs in its application of the state's public accommodations law protecting LGBTQ people from discrimination.

Fulton, like Masterpiece, was "a very process-based decision," Anthony Michael Kreis, assistant professor of law at Georgia State University, said.

"You have this kind of very specific decision that hones in on the city of Philadelphia's policy and how it was implemented, rather than a recrafting of rules across the board," Kreis said. "As a consequence, this really doesn't imperil all LGBTQ rights or civil rights, generally across the board, whether it be public accommodations or housing or employment."

The ruling isn't a victory for LGBTQ advocates, but it's important that the court "is consistently refusing to grant that type of broad license to discriminate," said Jennifer Pizer, law and policy director for Lambda Legal, an LGBTQ legal advocacy organization.

"And that means nondiscrimination laws can and should continue to be enforced, regardless of people's reasons for wanting to discriminate against other people," she said.

Though the court has consistently declined to issue a more broad victory for faith-based organizations and businesses, Pizer said it's also "going out of its way" to find reasons to rule in favor of the religious claimant on very narrow grounds.

"In this case, the city of Philadelphia, in our view, should have easily won if you look at the details of how its system really works," Pizer said. "It has good reasons for how it enforces its nondiscrimination law, because it's prioritizing the interests of children, not the interests of the agencies who want city contracts."

Each year, approximately 20,000 youth age out of the foster care system. Queer couples are seven times more likely to adopt or foster children than different-sex couples, according to the Williams Institute at UCLA. They are also more likely to adopt older children, children with disabilities and minority children, research shows.

The court noted in its opinion that Catholic Social Services didn't actually turn away any LGBTQ couples. It also said excluding Catholic Social Services as a contractor would narrow the pool of adoptive parents, though Pizer argues that allowing social services providers to turn some prospective parents away would actually narrow the pool.

Kreis said the ruling could affect LGBTQ parents in Philadelphia "for a while." He suspects the agency will have their contract renewed, and then the city might rework its policy to eliminate the exemption process for contractors — which the Supreme Court said was applied unequally in the case of the Catholic agency. 

Pizer said the city — and any government agencies that contract with private organizations to provide social services — should establish clear standards for exemptions from nondiscrimination laws, and should ensure that enforcement procedures are always applied equally.

Elizabeth Sepper, a law professor at the University of Texas, Austin, said the decision in Fulton could prompt other social services providers to come forward and demand a similar exemption — not just when it comes to working with LGBTQ families. She notes that religious agencies have also rejected families with different religions, and she suspects they could also reject divorced families or single parents for religious reasons.

"They're going to look closely at their contractual requirements and see if there is language that suggests the possibility of individualized exemptions, and they're going to really lean on Fulton in advancing requests for an exemption," she said.

An invitation for future challenges

The Fulton decision is not only part of a larger pattern of the court siding with religious claimants, but it also indicates that the justices may be willing to take a broader look at case law related to religious objectors, Kreis said.

"Six of the justices suggested they were open to re-evaluating some older case law and maybe giving religious objectors more constitutional rights than they have currently under constitutional doctrine,” he said. “That could spell trouble for LGBTQ rights, that could spell trouble for women's rights and for health care access and abortion and all sorts of regulations that religious groups might object to.”

The court is also sending a discouraging message to LGBTQ young people in the foster system and to LGBTQ adoptive parents, said Ron Richter, a gay adoptive parent and CEO and executive director of JCCA, a foster care program in New York.

"The Supreme Court is saying it's OK for a government to contract with agencies that as a policy will not license [or] certify couples that have affirmed same-sex relationships," Richter said. “For teenagers that are struggling with their own sexual identity and their gender identity, they're being told by the Supreme Court, you may need to go into a home that the government is contracted with that, based upon religion, doesn't believe that your future relationship is appropriate. That is it. And that could happen based upon where we're headed and what this decision says."

Though the decision is limited in scope, Richter said it's an "invitation" for broader challenges from faith-based foster agencies, which, down the road, could have a significant negative impact.

"This ruling is narrow," said Stacey Stevenson, CEO of Family Equality, an advocacy organization for LGBTQ families, but the need for foster and adoptive parents, "is large, absolutely."

"It shrinks the available pool of parents when agencies are allowed to discriminate," she said.

Stevenson said the Fulton decision highlights the need to pass legislation like the John Lewis Every Child Deserves a Family Act, which would prohibit federally funded adoption agencies from discriminating based on religion, sex, sexual orientation, gender identity and marital status. She said the Senate also needs to pass the Equality Act, legislation that would provide federal nondiscrimination protections to LGBTQ people in many areas of life. It passed the House in February but has stalled in the Senate since a hearing in March.

She also stressed that the ruling does not affect foster care programs generally. "It does not create a general right for taxpayer-funded foster care agencies to discriminate, which is good news for the 400,000 children who are in foster care across our country."

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