A federal appeals court ruled yesterday that Philadelphia can require foster care agencies that have city contracts to adhere to the city’s nondiscrimination laws. The ruling comes in a case in which one agency tried to claim its religious beliefs allowed it to refuse service to same-sex prospective parents—while still taking public funds.
Last year, Philadelphia had stopped referring foster children to Catholic Social Services (CSS) because the agency would not license qualified same-sex couples to be foster or adoptive parents. CSS then brought a lawsuit in federal district court, and the ACLU filed a motion to intervene on behalf of the Support Center for Child Advocates, which provides legal representation and services to children in the foster care system, and Philadelphia Family Pride, a nonprofit organization for LGBTQ parents and prospective parents. They argued that the children and families served by the two organizations would be harmed if CSS won the lawsuit. CSS countered by arguing that the U.S. Constitution’s First Amendment protected their right to deny service based on religious beliefs, and asked the court for a preliminary injunction requiring the city to continue referring kids to them while the litigation proceeds. Last July, the U.S. District Court for the Eastern District of Pennsylvania denied that injunction.
This week’s decision by a three-judge panel of the 3rd U.S. Circuit Court of Appeals supports the district court’s position. Writing for the panel, Judge Thomas Ambro said, “The City’s nondiscrimination policy is a neutral, generally applicable law, and the religious views of CSS do not entitle it to an exception from that policy…. It has failed to make a persuasive showing that the City targeted it for its religious beliefs, or is motivated by ill will against its religion, rather than sincere opposition to discrimination on the basis of sexual orientation.”
Philadelphia needs more loving, qualified parents for foster children and that’s what Philadelphia’s non-discrimination policies make possible.
—Stephanie Haynes, Executive Director of Philadelphia Family Pride
Let’s look a little more closely at the appeals ruling. Ambro stressed that “Religious or conscientious objections do not supersede the basic obligation to comply with generally applicable civil rights laws provided those laws are applied neutrally,” citing Masterpiece Cakeshop, the U.S. Supreme Court case that many on the right claimed as a victory for a baker who refused to make a wedding cake for a same-sex couple. The Masterpiece ruling was in fact not so clear-cut, however, stating that the Colorado Civil Rights Commission did act with bias against the baker’s religion and so did not act impartially as it should have, while also stating that religious objections are not an excuse to deny others access to public accommodations. Still, Masterpiece remains dangerous in many ways for LGBTQ people and others. I’m gratified that Ambro reminds us of the part of Masterpiece that says religion cannot be used to deny public services.
Ambro explained that in the Philadelphia case, the City had not acted with bias against CSS’ religion, but was just enforcing its civil rights laws:
CSS’s theme devolves to this: the City is targeting CSS because it discriminates against same-sex couples; CSS is discriminating against same-sex couples because of its religious beliefs; therefore the City is targeting CSS for its religious beliefs. But this syllogism is as flawed as it is dangerous. It runs directly counter to the premise of Smith [a 1990 U.S. Supreme Court opinion written by Justice Antonin Scalia] that, while religious belief is always protected, religiously motivated conduct enjoys no special protections or exemption from general, neutrally applied legal requirements. That CSS’s conduct springs from sincerely held and strongly felt religious beliefs does not imply that the City’s desire to regulate that conduct springs from antipathy to those beliefs.
As proof of the City’s motivation, he noted that “Human Services still works with CSS as a congregate care provider and a Community Umbrella Agency. It still works with Bethany Christian as a foster care agency, even though Bethany also maintains its religious opposition to same-sex marriage. [Bethany has, however, changed its policy and no longer discriminates against same-sex couples wishing to foster children.] This supports the view that CSS is not being excluded due to its religious beliefs.”
This is a victory to savor even as religious exemptions in adoption and foster care remain one of the biggest threats to LGBTQ families. Leslie Cooper, deputy director of the ACLU’s LGBT & HIV Project, said in a statement:
This is a victory for the thousands of children in Philadelphia’s child welfare system. Many of those children live in group homes, are separated from siblings, or age out of foster care without ever becoming part of a family because of the shortage of foster and adoptive families to care for them. Prospective foster and adoptive parents should be judged by their capacity to provide love and support to a child, not the religious views of a tax-funded agency.
And Philadelphia Mayor Jim Kenney said:
I am grateful for the Court’s careful analysis of the case and its thoughtful decision. Our policy ensures that same-sex couples do not face discrimination as they seek to offer loving homes to Philadelphia children in need of foster care. At the same time, the policy safeguards religious liberties. We are proud that Philadelphia is a welcoming, inclusive city that values the diversity of its residents. This policy is the embodiment of those values, and we are pleased that the court has now upheld it.
The case could now be appealed to the U.S. Supreme Court. The Supreme Court last August had denied an emergency petition from CSS to intervene in the case, with Justices Clarence Thomas, Samuel A. Alito Jr., and Neil Gorsuch dissenting—but that was before President Trump’s most recent pick for the court, Brett Kavanaugh, took his seat. Savor the victory, then—but know that the fight probably isn’t over yet.
