ABOVE: U.S. Attorney General William Barr, Washington Blade file photo by Michael Key.
In the latest example of the Trump administration seeking to enable legal discrimination against LGBTQ people, the Justice Department is calling on the U.S. Supreme Court to allow religious-affiliated adoption agencies to refuse child placement into LGBTQ homes.
In a 35-page brief, U.S. Solicitor General Noel Francisco and other Justice Department attorneys maintain the City of Philadelphia has “impermissibly discriminated against religious exercise” under the First Amendment by requiring Catholic Social Services to abide by a contract requiring LGBTQ non-discrimination practices in child placement.
“Governmental action tainted by hostility to religion fails strict scrutiny almost by definition,” the brief says. “This court has never recognized even a legitimate governmental interest — much less a compelling one — that justifies hostility toward religion.”
The U.S. government isn’t a party to the case, known as Fulton v. City of Philadelphia, so the brief is completely voluntary. In justifying the brief before the Supreme Court, the filing makes the case the Justice Department has a compelling interest to intervene.
“This case concerns the application of the Free Exercise Clause of the First Amendment to the City of Philadelphia’s termination of a contract allowing Catholic Social Services to help place children in the City with foster parents, on the basis of Catholic Social Services’ unwillingness to endorse same-sex couples as foster parents,” the brief says. “The United States has a substantial interest in the preservation of the free exercise of religion. It also has a substantial interest in the enforcement of rules prohibiting discrimination by government contractors.”
The case came about after the City of Philadelphia learned in March 2018 that Catholic Social Services, which the city had hired to provide foster care services to children in child welfare, was refusing to license same-sex couples despite a contract prohibiting these agencies from engaging in anti-LGBTQ discrimination.
When the city said it would terminate the contract, Catholic Social Services sued on the basis it can maintain the contract and refuse placement into LGBTQ homes for religious reasons under the guarantee of free exercise of religion under the First Amendment.
A federal judge in Pennsylvania and the U.S. Third Circuit Court of Appeals denied a preliminary injunction in favor of Catholic Social Services. The Third Circuit, which declined to revisit the case “en banc” before the full court, based its decision in part on the 1990 ruling in Employment Division v. Smith.
After the Becket Fund for Religious Liberty, which is representing Catholic Social Services, filed a petition for certiorari before the Supreme Court, justices in February agreed to take up the case.
Although the case involves Catholic Social Services refusing to abide by the terms of its contract, the Justice Department framing of the litigation makes it seem like the City of Philadelphia is an aggressor and unfairly targeting Catholic Social Services, asserting the municipality is allowing for exemptions in some cases, but not religious-affiliated adoption agencies.
“The City impermissibly targeted religious organizations for enforcement of its newly articulated policies,” the brief says. “Commissioner Figueroa testified that, in determining whether foster-care agencies were complying with the anti-discrimination requirements of their contracts, the city focused only on religious agencies, making just a single inquiry to a secular foster-care agency…City officials made no effort to determine whether other secular agencies perform home studies for everyone who requests them, or show preference for or against individuals who fall within particular groups.”
Although one question before the court is whether Employment Division v. Smith, which determined states can impose neutral laws on religious groups, should be overturned, the Justice Department writes it isn’t necessary for the Supreme Court to go that far.
“While the petition for a writ of certiorari raises the question whether to overrule Employment Division v. Smith… this Court need not decide that question here,” the brief says. “Even under Smith, governmental actions that substantially burden religious exercise are subject to strict scrutiny unless they are carried out under neutral and generally applicable laws, free from hostility toward religious beliefs. Philadelphia’s actions do not satisfy those requirements.”
The brief also makes heavy use of the Supreme Court’s decision in the Masterpiece Cakeshop case, which determined the Colorado Civil Rights Commission held anti-religion bias in adjudicating the case of Colorado baker Jack Philips refusing to make a custom-made wedding case for a same-sex couple. Although legal observers have said the narrow ruling for Phillips was based on the facts of that particular case, the Justice Department says it weighs heavily in the Fulton litigation.
Leslie Cooper, deputy director with the American Civil Liberties Union LGBT & HIV Project, said in a statement if the Trump administration gets its way, the decision would impact more than LGBTQ families.
“While this case involves rejecting LGBTQ families, if the court accepts the claims made in this case, not only will this hurt children in foster care by reducing the number of families to care for them, but anyone who depends on a wide range of government services will be at risk of discrimination based on their sexual orientation, religion or any other characteristic that fails a provider’s religious litmus test,” Cooper said.
The ACLU signaled it will respond to the government’s brief in a filing due before the Supreme Court on Aug. 13.
The U.S. Supreme Court is set to hear the Fulton case at the same time as any day now it is expected to issue a decision in a trio of cases — Zarda v. Altitude Express, Harris Funeral Homes v. EEOC and Bostock v. Clayton County — that will determine whether anti-LGBTQ discrimination is a form of sex discrimination, therefore illegal in the workplace under Title VII of the Civil Rights Act of 1964.
In those cases, the Justice Department took the side of employers wishing to be able to discriminate against LGBTQ workers under the law, submitting briefs and arguing before justices Title VII doesn’t apply to LGBTQ workers.
If the court rules in favor of LGBTQ workers in those cases, but rules in favor of Catholic Social Services to discriminate in the Fulton case, it would likely dramatically undermine any affirmation of LGBTQ workplace protections under the law, allowing employers to claim a First Amendment right to discriminate.
