Story at a glance
- The Supreme Court reviewed a decision in Fulton v. City of Philadelphia, which prohibited a religious foster care agency from discriminating against same-sex couples.
- The court unanimously voted against the City of Philadelphia and in favor of the Catholic Social Services.
- Critics say that this exclusion amounts to discrimination against the LGBTQ+ community, which is prohibited in the city’s contract — except in certain cases.
A crowd of faith leaders and other LGBTQ+ advocates began to form just hours after the Supreme Court ruled unanimously in favor of Catholic Social Services (CSS), allowing the foster care agency to refuse same-sex parents on the basis of their sexuality.
"The question is not whether the City has a compelling interest in enforcing its non-discrimination policies generally, but whether it has such an interest in denying an exception to CSS," wrote Chief Justice Roberts, who delivered the opinion on behalf of justices Breyer, Sotomayor, Kagan, Kavanaugh, Barrett, Alito, Thomas and Gorsuch. "CSS seeks only an accommodation that will allow it to continue serving the children of Philadelphia in a manner consistent with its religious beliefs; it does not seek to impose those beliefs on anyone else."
Last November, the Supreme Court heard oral arguments in Fulton v. City of Philadelphia, a case brought by the taxpayer-funded, religious-affiliated foster care agency after the city said it would no longer refer children to this or another agency — which changed its policy — unless they complied with the nondiscrimination requirements in their contracts. 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.
After a long wait, the LGBTQ+ community was left disappointed, but some were heartened by the narrow scope of the decision, which found that Philadelphia's nondiscrimination rule was not "generally applicable" because it permitted some exceptions — which the court ruled were warranted in this case.
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"This decision is painful because the discrimination at the heart of this case is being allowed to stand," said Erin Uritus, CEO of Out & Equal Workplace Advocates, in a statement. "At the same time, the Court is saying that there is no broad right to discriminate, that the government can enforce nondiscrimination laws."
For many LGBTQ+ parents and hopeful parents, however, that wasn’t much consolation.
"Maybe I'm heartened that we bought some time, but I think there was a lot in the concurrence that say to those looking, 'here's what we need to find in order for the case to get to us so that we can take away more rights,'" said Ron Richter, CEO of the Jewish Child Care Association New York, as well as a former NYC family court judge and former head of the NYC Administration for Children’s Services under Mayor Michael Bloomberg.
An adoptive parent himself, Richter said he was troubled by the message this sent to other cities and local governments about contracting with organizations who discriminate against LGBTQ+ or other families. At the same time, the decision also affects the nearly one-third of LGBTQ+ children in foster care who could end up in homes with parents who aren’t affirming of their identity. Others may not end up in a home at all, trapped in the overcrowded foster care system until they turn 18.
"For me, this is about the message that the most powerful court in the land is sending to folks that identify as LGBTQ and the message is loud and clear: you are not equal," Richter said. "And for the lgbtq children in foster care, the message is you dont matter as much."
Still, he added, "young people should rest assured we are going to fight for them in the face of an extraordinarily conservative federal bench."
The decision hinged on the First Amendment’s "free exercise clause," which prevents the government from restricting an establishment of religion or the exercise of religious beliefs. In the case of the Catholic Church, that is the refusal to accept same-sex couples or other LGBTQ+ people.
"Today, the Supreme Court rightly affirmed that the Constitution guarantees faith-based agencies freedom from government harassment and discrimination because of their religious beliefs about marriage," Catholic Vote President Brian Burch said in a statement. "All Americans benefit from the Supreme Court’s decision to uphold our first amendment freedoms, but most especially the vulnerable children of Philadelphia who directly benefit from the life-changing work of Catholic Social Services."
Richter and other LGBTQ+ advocates disagree.
"The constitutional right to religious freedom protects the sanctity of personal belief. However, that freedom ends when the exercise of one’s faith would harm the rights or well-being of another," said Katy Joseph, director of policy & advocacy for Interfaith Alliance, which gathered on the steps of the Supreme Court on Thursday. "This decision vastly distorts our first freedom by allowing faith-based providers to needlessly restrict the pool of prospective foster and adoptive parents, forcing vulnerable children to suffer the trauma of state care longer than necessary."
Richter added, "There are others that will be discriminated against by decisions of this Supreme Court. And it just so happens that this decision affects gay people but I worry about the majority imposing its beliefs on the rest of us using the constitution and I just wonder whats next."
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