Supreme Court to Consider LGBTQ Rights and Foster Care the Day After Election

The case, which will mark the first major case that new conservative Justice Amy Coney Barrett will consider, is similar to others in recent years that have pitted LGBTQ couples against religious business proprietors that deny them service.

The case, which will mark the first major case that new conservative Justice Amy Coney Barrett will consider, is similar to others in recent years that have pitted LGBTQ couples against religious business proprietors that deny them service. Shutterstock

 

Connecting state and local government leaders

The case, which concerns a taxpayer-funded Catholic adoption agency, could make a big impact on LGBTQ rights and force changes in government contracting practices with religious organizations.

The Supreme Court will consider anti-discrimination laws and LGBTQ rights on Wednesday, taking up a case that could have a significant impact on state and local governments’ abilities to define their contracts with religious organizations providing social services. 

The case in question, Fulton v. City of Philadelphia, revolves around a Catholic adoption agency in Philadelphia that refused to place foster children with same-sex parents. The agency, Catholic Social Services, had a contract with the city to screen foster parents, but used its own religious criteria in the evaluation process. 

In 2018, after a Philadelphia Inquirer article described the agency’s policy, city officials declined to renew CCS’ contract, saying that their practices were discriminatory and in violation of a city law that protects people from prejudicial treatment on the basis of their sexual orientation. The city council then called for the adoption of new language in its social services contracting policies that specifically addressed “discrimination that occurs under the guise of religious freedom.”

The agency, along with foster parents it serves, like the named petitioner Sharonell Fulton, sued the city. They claim that the city has violated their First Amendment right to religious expression.

The case, which will mark the first major case that new conservative Justice Amy Coney Barrett will consider, is similar to others in recent years that have pitted LGBTQ couples against religious business proprietors that deny them service. In 2018, for example, the Supreme Court sided with a bakery in Colorado that refused to create a wedding cake for a gay couple. In Fulton, the court will have to decide whether faith-based organizations that discriminate against LGBTQ people are still eligible to provide taxpayer-funded government services.

The case could have a big impact beyond the foster care system. Many state and local governments contract with private agencies to provide social services, such as shelter for the homeless, refugee resettlement assistance, and substance use treatment.

Foster care advocates and child welfare groups have warned that allowing agencies to discriminate against gay couples will further strain an already overwhelmed system caring for nearly than 440,000 foster kids. LGBTQ families foster and adopt at much higher rates than heterosexual couples; over 20% of gay couples with children have adopted kids and 3% are fostering children, compared to 3% of straight couples with children who have adopted and 0.4% who are fostering.

Religious rights groups and conservative organizations, along with the Trump administration, are standing behind Catholic Social Services. States like Nebraska, Arizona, and Ohio have also backed the agency, arguing that working with a wide variety of foster placement organizations provides a broader recruiting net for potential parents because they “target different audiences.” (Nebraska was the last state with a law banning LGBTQ couples from serving as foster parents, a measure that was struck down by the state Supreme Court in 2017.) Solicitor General Noel Francisco, representing the Trump administration in a brief submitted to the court in June, made a constitutional argument, saying that Philadelphia “impermissibly discriminated against religious exercise” and employed “unconstitutional hostility toward Catholic Social Services’ religious beliefs.”

Civil liberties organizations like the ACLU have said that the case isn’t about “religious liberty” but “government-funded discrimination” where contractors can “selectively refuse to provide” services. Leslie Cooper, deputy director for the ACLU’s LGBT & HIV Project, said in a statement that if the court sides with the adoption agency, “it would be devastating for millions of people who rely upon critical government services.”

“Not only will the 440,000 children in our child welfare system lose out on qualified parents who are LGBTQ or a different faith than the agency, but 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,” Cooper said. 

When the case was heard by the 3rd U.S. Circuit Court of Appeals, the three-judge panel relied on judicial precedent from the 1990 case Employment Division v. Smith. That ruling established that laws restricting religious exercise are allowed as long as they are “generally applicable” and aren’t written to target specific religious practices.

Catholic Social Services has asked the court to overturn the Smith precedent, something that could be possible with a 6-3 conservative majority that, with the addition of Barrett, may be more likely to side with the religious group. In the broadest possible ruling in favor of the adoption agency, Smith could be overturned and any religiously affiliated business or individual could raise a religious objection to nondiscrimination laws. In the narrowest ruling in favor of the adoption agency, the justices could decide that Philadelphia can’t require foster placement agencies to follow nondiscrimination laws to receive city contracts. A ruling in the middle would likely impact only government-contracted social service agencies whose practices run counter to state and local nondiscrimination laws.`

Eleven states currently allow state-licensed child welfare agencies to deny foster placements to parents whose sexual orientations conflict their religious beliefs.

Philadelphia Solicitor Marcel S. Pratt, in a statement released in February when the Supreme Court agreed to take up the case, said the city is “proud of our longstanding commitment to supporting freedom of religion and preserving equal access to services for all people—regardless of their race, national origin, religion, age, sex, disability, sexual orientation, or gender identity.”

“This case is ultimately about serving the youth in our care,” Pratt said.

X
This website uses cookies to enhance user experience and to analyze performance and traffic on our website. We also share information about your use of our site with our social media, advertising and analytics partners. Learn More / Do Not Sell My Personal Information
Accept Cookies
X
Cookie Preferences Cookie List

Do Not Sell My Personal Information

When you visit our website, we store cookies on your browser to collect information. The information collected might relate to you, your preferences or your device, and is mostly used to make the site work as you expect it to and to provide a more personalized web experience. However, you can choose not to allow certain types of cookies, which may impact your experience of the site and the services we are able to offer. Click on the different category headings to find out more and change our default settings according to your preference. You cannot opt-out of our First Party Strictly Necessary Cookies as they are deployed in order to ensure the proper functioning of our website (such as prompting the cookie banner and remembering your settings, to log into your account, to redirect you when you log out, etc.). For more information about the First and Third Party Cookies used please follow this link.

Allow All Cookies

Manage Consent Preferences

Strictly Necessary Cookies - Always Active

We do not allow you to opt-out of our certain cookies, as they are necessary to ensure the proper functioning of our website (such as prompting our cookie banner and remembering your privacy choices) and/or to monitor site performance. These cookies are not used in a way that constitutes a “sale” of your data under the CCPA. You can set your browser to block or alert you about these cookies, but some parts of the site will not work as intended if you do so. You can usually find these settings in the Options or Preferences menu of your browser. Visit www.allaboutcookies.org to learn more.

Sale of Personal Data, Targeting & Social Media Cookies

Under the California Consumer Privacy Act, you have the right to opt-out of the sale of your personal information to third parties. These cookies collect information for analytics and to personalize your experience with targeted ads. You may exercise your right to opt out of the sale of personal information by using this toggle switch. If you opt out we will not be able to offer you personalised ads and will not hand over your personal information to any third parties. Additionally, you may contact our legal department for further clarification about your rights as a California consumer by using this Exercise My Rights link

If you have enabled privacy controls on your browser (such as a plugin), we have to take that as a valid request to opt-out. Therefore we would not be able to track your activity through the web. This may affect our ability to personalize ads according to your preferences.

Targeting cookies may be set through our site by our advertising partners. They may be used by those companies to build a profile of your interests and show you relevant adverts on other sites. They do not store directly personal information, but are based on uniquely identifying your browser and internet device. If you do not allow these cookies, you will experience less targeted advertising.

Social media cookies are set by a range of social media services that we have added to the site to enable you to share our content with your friends and networks. They are capable of tracking your browser across other sites and building up a profile of your interests. This may impact the content and messages you see on other websites you visit. If you do not allow these cookies you may not be able to use or see these sharing tools.

If you want to opt out of all of our lead reports and lists, please submit a privacy request at our Do Not Sell page.

Save Settings
Cookie Preferences Cookie List

Cookie List

A cookie is a small piece of data (text file) that a website – when visited by a user – asks your browser to store on your device in order to remember information about you, such as your language preference or login information. Those cookies are set by us and called first-party cookies. We also use third-party cookies – which are cookies from a domain different than the domain of the website you are visiting – for our advertising and marketing efforts. More specifically, we use cookies and other tracking technologies for the following purposes:

Strictly Necessary Cookies

We do not allow you to opt-out of our certain cookies, as they are necessary to ensure the proper functioning of our website (such as prompting our cookie banner and remembering your privacy choices) and/or to monitor site performance. These cookies are not used in a way that constitutes a “sale” of your data under the CCPA. You can set your browser to block or alert you about these cookies, but some parts of the site will not work as intended if you do so. You can usually find these settings in the Options or Preferences menu of your browser. Visit www.allaboutcookies.org to learn more.

Functional Cookies

We do not allow you to opt-out of our certain cookies, as they are necessary to ensure the proper functioning of our website (such as prompting our cookie banner and remembering your privacy choices) and/or to monitor site performance. These cookies are not used in a way that constitutes a “sale” of your data under the CCPA. You can set your browser to block or alert you about these cookies, but some parts of the site will not work as intended if you do so. You can usually find these settings in the Options or Preferences menu of your browser. Visit www.allaboutcookies.org to learn more.

Performance Cookies

We do not allow you to opt-out of our certain cookies, as they are necessary to ensure the proper functioning of our website (such as prompting our cookie banner and remembering your privacy choices) and/or to monitor site performance. These cookies are not used in a way that constitutes a “sale” of your data under the CCPA. You can set your browser to block or alert you about these cookies, but some parts of the site will not work as intended if you do so. You can usually find these settings in the Options or Preferences menu of your browser. Visit www.allaboutcookies.org to learn more.

Sale of Personal Data

We also use cookies to personalize your experience on our websites, including by determining the most relevant content and advertisements to show you, and to monitor site traffic and performance, so that we may improve our websites and your experience. You may opt out of our use of such cookies (and the associated “sale” of your Personal Information) by using this toggle switch. You will still see some advertising, regardless of your selection. Because we do not track you across different devices, browsers and GEMG properties, your selection will take effect only on this browser, this device and this website.

Social Media Cookies

We also use cookies to personalize your experience on our websites, including by determining the most relevant content and advertisements to show you, and to monitor site traffic and performance, so that we may improve our websites and your experience. You may opt out of our use of such cookies (and the associated “sale” of your Personal Information) by using this toggle switch. You will still see some advertising, regardless of your selection. Because we do not track you across different devices, browsers and GEMG properties, your selection will take effect only on this browser, this device and this website.

Targeting Cookies

We also use cookies to personalize your experience on our websites, including by determining the most relevant content and advertisements to show you, and to monitor site traffic and performance, so that we may improve our websites and your experience. You may opt out of our use of such cookies (and the associated “sale” of your Personal Information) by using this toggle switch. You will still see some advertising, regardless of your selection. Because we do not track you across different devices, browsers and GEMG properties, your selection will take effect only on this browser, this device and this website.