Story at a glance

  • The Supreme Court is reviewing a decision in Fulton v. City of Philadelphia, which prohibited a religious foster care agency from discriminating against same-sex couples.
  • The case pits religious conservatives and those who don’t believe in same-sex marriage against the LGBTQ+ community.
  • This will be one of the first cases for the incoming Amy Coney Barrett.

After Amy Coney Barrett was sworn in as the next Supreme Court justice, many Americans are wondering what the outcome of the upcoming presidential election will mean for the highest court in the country. But the day after the election, perhaps even before a winner is declared, the Republican pick will decide a major case for the LGBTQ+ community. 

On Nov. 4, the Supreme Court is scheduled to hear oral arguments in Fulton v. City of Philadelphia, a cause brought by a taxpayer-funded, religious-affiliated foster care agency seeking to reject same sex couples as foster parents. The Third Circuit Court of Appeals sided with the lower courts, ruling in favor of Philadelphia, in April of 2019, but the Supreme Court granted a request for a writ of certiorari, or a review, of the decision.


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"Preventing discrimination in the provision of public services is undeniably a legitimate interest," said District Judge Petrese Tucker in her ruling, citing the Supreme Court decision in Heart of Atlanta Motel, Inc. v. United States. "Discrimination is not simply dollars and cents, hamburgers and movies; it is the humiliation, frustration, and embarrassment that a person must surely feel when he is told that he is unacceptable as a member of the public because of his race or color. It is equally the inability to explain to a child that regardless of education, civility, courtesy, and morality he will be denied the right to enjoy equal treatment, even though he be a citizen of the United States and may well be called upon to lay down his life to assure this Nation continues."

The original complaint against the city cites a 2018 article in the Philadelphia Inquirer which revealed that Bethany Christian Services — which has since changed its policy — and Catholic Social Services (CSS) did not accept same-sex couples as foster parents. In response, Philadelphia said it would no longer refer children in the city's care to these agencies unless they complied with the nondiscrimination requirements in their contracts. The city still contracts with CSS for case management services and operating group homes, but the organization sued the city — saying the requirement went against the Catholic Church's religious beliefs.


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"Just as no LGBT couples are prevented from marrying because a particular church does not perform same-sex weddings, no LGBT couples are prevented from fostering because a particular church cannot provide an endorsement. Yet many churches will be prevented from exercising religion by caring for at-risk children, all due to a disagreement with the government about marriage," said CSS and two of its foster parents, Sharonell Fulton and Toni Lynn Simms-Busch, in its petition to the Supreme Court

In addition to the First Amendment argument, the case also relies heavily on the precedent of a case decided in 1990: Employment Division, Department of Human Resources of Oregon v. Smith. The decision held that the state of Oregon could deny unemployment benefits to Alfred Leo Smith for violating its prohibition of peyote, even though the drug was used as part of a religious ritual. Fulton, Simms-Busch and CSS argue that the Supreme Court should revisit the ruling altogether, arguing that the Smith rule "has not delivered on its central promise." 

"Overturning Smith would create a doctrinal mess, and petitioners offer little guidance on how courts would clean it up," said the city in a brief filed with the Supreme Court

Both sides agreed on one argument in their filed briefs to the Supreme Court: This case will have serious consequences for foster care and adoption agencies across the country at a time when child welfare systems are already burdened with the challenges of operating during the coronavirus pandemic. And whatever it is, the decision will likely answer the concerns of some LGBTQ+ advocates who see a conservative-majority on the court — especially with the addition Barrett — as a potential threat to their rights. 

“What we have seen is one after another court case testing and questioning not only our rights but quite frankly our dignity,” Sarah Kate Ellis, the president and CEO of GLAAD, told Changing America in an interview earlier this month


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Published on Oct 26, 2020