ABOVE: The SCOTUS, Washington Blade file photo by Michael Key.
With a new 6-3 majority on the U.S. Supreme Court, conservative justices appeared to side Wednesday with a religious-affiliated agency seeking a First Amendment right to reject LGBTQ couples in foster care services.
In the case of Fulton v. City of Philadelphia, Catholic Social Services argues a First Amendment right to refuse to place children with same-sex couples even though it signed a contract with Philadelphia agreeing not to engage in anti-LGBTQ discrimination through its taxpayer-funded activities.
During oral arguments, conservative justices — displaying open animosity toward non-discrimination rules for religious institutions — seemed poised to rule to allow Catholic Social Services to reject LGBTQ couples in foster care services.
In the case of U.S. Associate Justice Clarence Thomas, the animus wasn’t just directed at LGBTQ non-discrimination principles, but the very idea LGBTQ couples would be suitable parents at all.
Thomas asked, Jeffrey Fisher, a Stanford law attorney arguing on behalf of the Support Center for Child Advocates & Family Pride, if the City of Philadelphia, has an interest in ensuring children are placed into suitable homes, which implies LGBTQ couples aren’t suitable.
“Don’t you think it’s in the best interest of the the child to also have a pool, that is, that is beneficial to the child?” Thomas asked. “I don’t understand why that isn’t also in the best interest of the child.”
Fisher, rather that starting a fight with Thomas over the premise of his question, said the city “100 percent agree[s],” but shifted the argument to why the non-discrimination requirements are important.
“The city’s point is that when you enable an FCA to discriminate on the basis of orientation that will stigmatize the youth, that is a compelling interest,” Fisher said. “LGBT kids are an outsize number of people in the foster care population, and it’ll undermine the ability of the program to operate.”
In a huff, U.S. Associate Justice Samuel Alito sneered that the City of Philadelphia only terminated its contract with Catholic Social Services because of hostility toward religious views against same-sex marriage.
“If we are honest about what’s really going on here, it’s not about ensuring that same-sex couples in Philadelphia have the opportunity to be foster parents,” Alito said. “It’s the fact that the city can’t stand the message that Catholic Social Services and the archdiocese are sending by continuing to adhere to the old-fashioned view about marriage.”
The case came about in 2018 when the City of Philadelphia found out Catholic Social Services wasn’t abiding by these rules. The city terminated the contract with the foster care agency.
U.S. Associate Justice Brett Kavanaugh criticized the City of Philadelphia, saying governments should be trying to find “win-win” solutions to accommodate same-sex marriage and religious objections.
“But when I look at this case, that’s not at all what happened here,” Kavanaugh said. “It seems like Philadelphia created a clash, it seems, and was looking for a fight, and brought that serious controversy all the way to the Supreme Court.”
With a new 6-3 conservative majority on the Supreme Court, the views conservative justices expressed would suggest Catholic Social Services is headed for a win.
U.S. Chief Justice John Roberts, however, kept his cards close to his chest compared to his more conservative colleagues.
Roberts, consistent with his recent practices of siding with the liberal justices, opened up questioning in oral arguments by suggesting Philadelphia, not the Supreme Court, is best positioned to settle this issue.
“This is a case involving Free Exercise rights, but it’s in tension with another set of rights, those recognized in our decision in Obergefell,” Roberts asked. “And whatever you think, or however you think that tension should be resolved as a matter of government regulation, shouldn’t the city get to strike the balance as it wishes when it comes to setting conditions for participating in what is, after all, its foster program?”
Attorneys arguing before the Supreme Court cited multiple decisions on religious liberty, maintaining on both sides the freedom of religion under the U.S. Constitution benefits their arguments.
Neal Katyal, a Georgetown law professor arguing on behalf of the City of Philadelphia, said the broad ruling sought by Catholic Social Services would open the door to invidious discrimination — not just against LGBTQ couples.
“This case, I think as [the late U.S. Associate] Justice Scalia might say, comes as a wolf,” Katyal said. “Petitioners’ rule would enable an FCA to exclude parents of any religion — from Buddhist to Baptist — and this court — because it can’t second guess the reasonableness of a belief — it opens the door to all sorts of claims…and it radiates far beyond foster care to hold government contracts in all 50 states.”
Lori Windham, senior counsel at Becket Law firm, argued on behalf of Catholic Social Services, that the City of Philadelphia is denying the placement of children in foster care into homes because it won’t allow Catholic Social Services to conduct services consistent with its religious views.
“The city has no compelling reason for excluding Catholic Social Services, which has exercised its faith by serving at-risk children in Philadelphia for two centuries, nor does it have any interest in refusing to allow the agency to step aside and provide referrals elsewhere,” Windham said.
Representing the Trump administration in the argument was Hasim Moopan, counselor to the U.S. solicitor general, who maintained the City of Philadelphia was hostile toward Catholic Social Services. (However, that argument suggests the Trump administration is seeking a ruling akin to the Masterpiece Cakeshop decision, which would be limited in nature and not a sweeping First Amendment decision as sought by Becket Law.)
“What the city has done is worse than cutting off its nose to spite its face, what it is doing is cutting off homes from the most vulnerable children in the city to spite the Catholic Church,” Moopan said.
A major point of contention was whether the Supreme Court could allow Catholic Social Services to reject LGBTQ families in foster care, but still require them to abide by non-discrimination laws on the basis of race and, for example, prohibiting discrimination against interracial couples.
In response to a question from the newly confirmed U.S. Associate Justice Amy Coney Barrett, Windham denied that allowing Catholic Social Services to reject LGBTQ families would open the door to another case allowing a foster care agency to discriminate on the basis of race.
“No, your honor,” Windham replied. “If that case were even to get to strict scrutiny, this court has been clear in Loving [v. Virginia] and other cases the government has a compelling interest in ending racial discrimination. It’s a far cry from here, where [Philadelphia Department of Human Services] Commissioner [Kimberly] Ali said that the interest is no stronger or no weaker than enforcing any other policy. It’s hard to imagine the city making that kind of concession in a case involving interracial marriage.”
U.S. Associate Justice Stephen Breyer, one of few liberal justices remaining on the bench, was irate over the idea the Supreme Court would issue a ruling discrimination is permissible, just as long as it isn’t racial discrimination, asking Moopan to clarify whether that is in fact the administration’s position.
“I want to interrupt you right here, because the two of you said this, that we should write an opinion, which says discrimination on the basis of race constitutionally speaking is different than the discrimination on the basis of gender, on the basis of gender, on the basis of nationality, on the basis of homosexuality,” Breyer said.
Without explicitly affirming that was the case, Moopan argued the Supreme Court has previously made rulings about “how race is unique in this country’s constitutional history and eradicating that type of racial discrimination presents a particularly unique and compelling interest.”
U.S. Associate Justice Neil Gorsuch pointed out the City of Philadelphia has shifted its argument to saying even without the contract Catholic Social Services was violating its non-discrimination ordinance.
Windham, responding to Gorsuch’s questioning on the matter, called that shift an “important fact.”
“If we’re going to take the city at its word there, what it means is that we’ve stepped out of the contracting context now, and we are firmly in the regulating context,” Windham said. “What the city is saying to Catholic Social Services is that it is illegal for you to do this work in the city of Philadelphia according to your religious exercise, whether you contract with the government or not.”
Another issue was whether same-sex couples had even approached Catholic Social Services for foster care services. Under questioning from Alito, Windham said the number was “zero” before the events at issue now.
Sotomayor, however, pointed out the reason LGBTQ couples weren’t going to Catholic Social Services was because it had an open policy to begin with saying it would refuse to certify them for child placement.
All eyes during oral arguments were on Barrett given she’s a new justice on the court. Although she wasn’t as harsh as some of her conservative colleagues on the bench, she nonetheless appeared sympathetic to Catholic Social Services.
At one point, Barrett invoked a hypothetical in which the city has taken over all hospitals, contracts with private entities to run them, then a Catholic hospital already in existence before the policy gets a contract, but has to perform abortions.
“In that context, do we analyze this as a licensing question, or given that the Catholic hospital can’t even enter the business without this contract, do you still say that this was the provision of a contractual service?” Barrett asked.
Katyal rejected that idea, however, saying the hypothetical was off-base because Philadelphia isn’t monopolizing foster care services and Catholic Social Services still has a $26 million budget to conduct services on its own.
“[T]he government somehow monopolizing a private care system — health care system or hospital system — that itself would raise any number of constitutional problems and I think our intuition as to why that hypothetical sounds so horrible is because of that,” Katyal said.
Liz Cooper, a Fordham law professor and the director of the Feerick Center for Social Justice, said in a statement after the argument the resolution to the case should be simple.
“The City of Philadelphia asks no more of CSS than that it adheres to the city’s laws prohibiting discrimination,” Cooper said. “CSS, and similarly situated agencies, are free to pursue their beliefs that LGBTQ people and couples should not be parents, but not when it seeks to carry out the mission of the city — namely, to provide safe and loving homes for children and teenagers in need.
