In a unanimous decision, the U.S. Supreme Court has just ruled in Fulton v. City of Philadelphia in favor of a faith-based foster care agency that refused to contract with same-sex parents. While this is not the win we might have wanted, it is a narrow loss that one LGBTQ legal expert is still calling “a huge victory.”
The Decision
Today’s ruling held that the city violated the First Amendment by refusing to contract with Catholic Social Services (CSS), a faith-based child service agency that would not certify same-sex couples as foster parents. The court said that the City of Philadelphia’s nondiscrimination requirement is not “generally applicable” because it contains a clause allowing for exceptions. The free exercise of religion, however, may only be burdened only if such burdens are an unintended result of generally applicable laws. Because the city could have granted an exception to its nondiscrimination clause but did not, their decision to deny CSS a contract violated CSS’ free exercise of religion.
Properly understood, today’s unanimous ruling in #Fulton is a huge victory for #LGBTQ people. Governments may continue to enforce neutral, generally applicable anti-discrimination laws that prohibit discrimination based on SOGI.
Although this is a loss for the city and for the children in it, it is not the sweeping decision in favor of religious exemptions in child services that it could have been. Shannon Minter, legal director of the National Center for Lesbian Rights (NCLR), tweeted after the ruling that it was “A narrow decision that leaves existing law largely unchanged & creates no sweeping new religious exemption” and that “Properly understood, today’s unanimous ruling in #Fulton is a huge victory for #LGBTQ people. Governments may continue to enforce neutral, generally applicable anti-discrimination laws that prohibit discrimination based on SOGI [sexual orientation and gender identity].”
[Updated with quotes from statements.] Minter later explained in a statement from NCLR:
The Court ruled in favor of Catholic Social Services, but on the narrowest possible ground, based on language in the City of Philadelphia’s contract that authorized individualized exemptions for any provider. The Court did not change the current constitutional framework, which permits governments to enforce antidiscrimination laws that prohibit discrimination against LGBTQ people even when doing so may have a disparate burden on those who hold certain religious beliefs. As a result of today’s decision, those who feared the Court might create a sweeping new religious exemption to such laws can breathe a sigh of relief.
Cathy Sakimura, deputy director and family law director at NCLR, tweeted that the decision “preserves the ability of states to prevent discrimination by private agencies providing government services. This is important not just to LGBT foster and adoptive parents but LGBT parents and LGBT youth separated by the child welfare system.” She later elaborated in a statement:
This narrow ruling allows governments to continue to prohibit discrimination not only against LGBTQ foster and adoptive parents but also against LGBTQ parents who are often wrongfully separated from their children by discriminatory child welfare practices that unfairly target parents who are poor, LGBTQ, disabled, or people of color. Today’s decision preserves the critical ability of governments to prohibit such rampant discrimination, which is an urgent need.
HRC also put a positive spin on the decision in its tweet, saying: “#SCOTUS has ruled non-discrimination laws apply to taxpayer-funded child services so long as they are enforced neutrally but that Philadelphia’s law was not neutral.”
Yes, it is still surprising and disappointing that the decision was unanimous. Mark Joseph Stern, who covers law and the courts for Slate, opined in a tweet, “Why did all three liberal justices side against Philadelphia in Fulton? Presumably because they viewed Chief Justice Roberts’ approach as the least bad option. Roberts’ opinion provides the narrowest grounds to rule against Philadelphia, which six justices were sure to do anyway.” That seems as good an interpretation as any.
This decision might as well be written on the dissolving paper sold in magic shops.
[Updated to add:] If you still don’t believe this was really a win (albeit not a complete one), though, consider this statement from Justice Samuel Alito in his concurring opinion: “This decision might as well be written on the dissolving paper sold in magic shops. The City has been adamant about pressuring CSS to give in, and if the City wants to get around today’s decision, it can simply eliminate the never-used exemption power.” (Thanks to Shannon Minter for pointing this out to me.)
Digging Deeper
The case began in 2018, when the City of Philadelphia stopped referring foster children to 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, which ruled for the city, as did an appeals court. CSS appealed to the Supreme Court, which took the case in February 2020. In June 2020, the Trump administration filed a brief siding with CSS, and the Supreme Court heard arguments last November. I refer you to my post on the hearing for a detailed look at the arguments.
The decision today, written by Chief Justice John Roberts, made three main arguments. First, it said that “the City has burdened CSS’s religious exercise through policies that do not satisfy the threshold requirement of being neutral and generally applicable.” The Court explained that “The non-discrimination requirement of the City’s standard foster care contract is not generally applicable” because although it requires an agency to provide services to prospective foster parents without regard to their sexual orientation, one clause also permits exceptions to this requirement, “at the ‘sole discretion’ of the Commissioner.” The fact that the contract includes “a mechanism for entirely discretionary exceptions renders the non-discrimination provision not generally applicable.”
Additionally, the ruling said, although Philadelphia’s Fair Practices Ordinance forbids interfering with the public accommodations opportunities of an individual based on sexual orientation, that ordinance does not apply to CSS’s actions in this case, because they do not fall under the definition of “public accommodation.” The Court writes, “The Ordinance defines a public accommodation in relevant part to include a provider ‘whose goods, services, facilities, privileges, advantages or accommodations are extended, offered, sold, or otherwise made available to the public,'” but “Certification as a foster parent is not readily accessible to the public; the process involves a customized and selective assessment that bears little resemblance to staying in a hotel, eating at a restaurant, or riding a bus.”
Finally, the ruling said that the non-discrimination requirement in the city’s contract with CSS “burdens CSS’s religious exercise and is not generally applicable, so it is subject to ‘the most rigorous of scrutiny.’” That means that the requirement is only allowed if it “advances compelling interests and is narrowly tailored to achieve those interests.” Roberts explained that “the City does not have a compelling interest in refusing to contract with CSS” because “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.”
Significantly, too, the ruling noted the city’s interest “in the equal treatment of prospective foster parents and foster children,” and affirmed, “We do not doubt that this interest is a weighty one, for ‘[o]ur society has come to the recognition that gay persons and gay couples cannot be treated as social outcasts or as inferior in dignity and worth,’” quoting its decision in Masterpiece Cakeshop, another case in which religious exemptions won narrowly on technical details.
While the Fulton opinion was unanimous and was joined by Justices Stephen Breyer, Elena Kagan, Sonia Sotomayor, Brett Kavanaugh, and Amy Coney Barrett, many of the justices also wrote concurring opinions. Stay tuned for more analysis on this from LGBTQ legal experts.
Keep in Mind
Over 423,000 children are currently in foster care, over 122,000 are waiting to be adopted, and nearly 20,000 are aging out of foster care each year without finding a permanent home, according to the latest federal data. In Philadelphia alone, more than 1,200 child placement agencies contract with city, county, and/or state governments to care for children. Of those, 39.8 percent agencies are religiously affiliated, mostly (88 percent) with mainstream Christian denominations, according to a report from the Movement Advancement Project (MAP).
To counter the argument that closing religiously affiliated agencies that discriminate will have a similarly (or worse) negative effect on the homes available for children, MAP also notes that there is “no evidence that states with nondiscrimination policies have fewer registered foster families or more children in group homes than those without such laws.”
MAP’s analysis also showed that children in the foster care system in the states that permit taxpayer-funded agencies to discriminate* were less likely to be placed with relatives and more likely to experience multiple placements, both of which are destabilizing and can negatively impact their well-being. The difference equaled an estimated 3,500 more children that experienced multiple placements. “If the Court granted a nationwide exemption to religious agencies, that 5.4% difference would amount to nearly 23,000 children currently in the foster system nationwide,” MAP concludes. That’s the bullet we dodged in today’s Fulton ruling, since the Court made it a narrow ruling about the Philadelphia contract and not a nationwide religious exemption.
Not all faith-based agencies have a problem following LGBTQ-inclusive nondiscrimination ordinances. This past March, Bethany Christian Services, the largest Protestant adoption and foster care agency in the U.S., announced that it would begin placing children with LGBTQ parents nationwide; this followed the local Bethany branch in Philadelphia changing its policy to comply with city nondiscrimination statutes. Clearly, there is no hard line between maintaining one’s identity as a religiously based organization and complying with governmental nondiscrimination statutes.
What’s Next?
At the end of May, the John Lewis Every Child Deserves a Family Act was introduced into Congress for the seventh time, and would prohibit discrimination in foster care and adoption on the basis of sexual orientation, gender identity, marital status, or religion. Even though the Fulton decision applies narrowly to Philadelphia, the shadow of religious exemptions continues to loom, and we should all reach out to our members of Congress to support this legislation, along with the broader Equality Act that would also prohibit such discrimination.
*Kansas, Mississippi, North Dakota, Oklahoma, South Carolina, South Dakota, Tennessee, Texas, and Virginia all allow this; Tennessee passed its legislation in 2020, though, so its data was not included in the MAP analysis. Alabama and Michigan also allow religiously based discrimination by state-licensed agencies, but not if the agencies receive taxpayer funds.