The Supreme Court unanimously ruled in favor of faith-based foster agency Catholic Social Services in a case that has significant implications for LGBTQ foster parents as well as taxpayer-funded groups’ ability to discriminate against queer people or other faiths based on “religious freedom.”
The case centers around two local foster agencies that the city of Philadelphia found would not work with same-sex couples as foster parents in 2018. The city deemed this a violation of their anti-discrimination policies, and stopped referring foster kids to those agencies. One agency, Catholic Social Services, sued the city, saying it was violating its First Amendment rights and demanding the city continue working with it even as it turned away gay couples as foster parents.
In a decision released Thursday, the court held that Philadelphia’s refusal to contract with CSS violates the free exercise clause of the First Amendment, which protects a person’s right to freely exercise their religion. The ruling requires the city of Philadelphia to renew its contract with CSS.
Chief Justice John Roberts delivered the opinion of the court, writing that Philadelphia’s actions “burdened CSS’s religious exercise by forcing it either to curtail its mission or to certify same-sex couples as foster parents in violation of its religious beliefs.”
The court ruled that the nondiscrimination requirement in Philadelphia’s foster care contract doesn’t apply to the CSS case because that requirement permits discretionary exceptions.
“No matter the level of deference we extend to the City, the inclusion of a formal system of entirely discretionary exceptions … renders the contractual nondiscrimination requirement not generally applicable,” Roberts wrote.
The Supreme Court’s ruling has implications not only for queer foster parents in Philadelphia and beyond, but also for any taxpayer-funded group — including homeless shelters and food banks — to be able to also turn away queer people or people of other religions, claiming a right to “religious freedom.”
The 3rd Circuit Court of Appeals previously upheld a lower court’s ruling in favor of the city, saying that 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.”
There are about 440,000 children in foster care across the U.S. In a brief supporting the city, the National Association of Social Workers, the Child Welfare League of America and other foster- and adoption-related nonprofits wrote that “a diversity of foster and adoptive families is needed to help ensure that all children find permanent, loving families” and that “gay and lesbian parents are essential partners in this effort.”
Two dozen U.S. senators and 148 U.S. House members — largely Democrats — warned in another brief that ruling in favor of the Catholic foster agency could “establish a broad right to religious exemptions from anti-discrimination laws” and would “undermine Congress’s ability to protect Americans from discriminatory practices.”
“This case is not only about the LGBTQ-parent families who could be turned away from foster care,” Leslie Cooper, deputy director for the ACLU’s LGBT & HIV Project, wrote in an opinion piece. (The ACLU represented the city in this case.) “If the court opens the door to discrimination based on a religious test, it would be devastating for millions of people who rely upon critical government services… people in need of taxpayer-funded services like homeless shelters or food banks could also be turned away because they are LGBTQ, Jewish, Mormon or otherwise don’t meet the provider’s religious criteria.”
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