Thursday’s Supreme Court ruling allowing a Catholic foster agency in Philadelphia to discriminate against prospective LGBTQ parents has sent tremors through some queer and activist communities.
The court’s unanimous ruling in Fulton v. City of Philadelphia has ignited long-standing fears that legal claims to “religious freedom” ― largely presented on behalf of white, Judeo-Christian groups ― will increasingly be used to marginalize gay, lesbian and gender non-conforming people, as well as people of other faiths.
In 2018, the City of Philadelphia stopped referring children to Catholic Social Services after learning the agency wouldn’t work with same-sex couples. The American Civil Liberties Union, the National Association of Social Workers and a host of other advocacy groups supported Philadelphia’s decision not to send children to CSS, and the ACLU represented the city when a lawsuit was filed on CSS’s behalf.
In a 2018 amicus brief, the advocacy groups wrote collectively that allowing anti-LGBTQ discrimination would disparately harm LGBTQ children. “The City’s foster and adoption policies should reinforce LGBTQ children’s sense of self-worth and the City’s efforts on their behalf, not undermine them,” the groups said.
But on Thursday, the U.S. Supreme Court ordered Philadelphia to renew the Catholic Social Services foster care contract, effectively shielding CSS from Philadelphia’s anti-discrimination policies despite it being taxpayer-subsidized.
The court didn’t say religious entities have the right to ignore anti-discrimination laws, however. Instead, it argued that Philadelphia law allows leeway for exemptions to some regulations and that the city didn’t pursue those options before ending the contract with CSS.
In an opinion delivered by Chief Justice John Roberts, a majority on the Court agreed “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.”
Throughout the day, groups focused on preserving LGBTQ rights measured their responses to the news, depicting the ruling’s preservation of anti-discrimination laws broadly as a win, but also pointing to CSS’s permitted discrimination as a potential harbinger of rulings to come.
In a press release responding to the decision, the ACLU said the ruling was “narrow” and argued it merely forced the city to renew CSS’s foster care contract because Philadelphia is able to make some agencies exempt from certain regulations on a discretionary basis.
“The court did not, however, establish a general right for religious organizations to violate non-discrimination laws,” the ACLU said.
Lambda Legal, the prominent organization that challenges anti-LGBTQ discrimination in court, made a similar argument, spinning the court’s decision as narrow. “Today’s ruling by the Supreme Court is troubling but, importantly, it refused to give a free pass to people or agencies that want to discriminate against LGBTQ people for religious reasons and is limited to the specifics of Philadelphia’s foster care system,” Senior Counsel M. Currey Cook said in a statement.
In his view, Fulton v. Philadelphia hinged on a technicality: The city hadn’t yet provided evidence that CSS had discriminated, it only learned CSS has a policy of anti-LGBTQ discrimination. He said if evidence of the agency’s discrimination was introduced, it would place pressure on the Court to take a historic look at the impact of discriminatory foster care policies.
“When confronted with such facts in a future case, the Court will have to grapple for the first time with the ways such discrimination harms the foster children whose needs and best interests must always be paramount in child welfare cases,” he said.
A statement from the National Black Justice Coalition, an organization focused on ending racism, homophobia and bias against same-gender couples, addressed the court pointedly and said its members were steeling themselves to fend off discriminatory rulings to come.
“All nine Supreme Court justices voted to permit legal discrimination in the city of Philadelphia. This will only harm children in the foster care system, who are all worthy of loving and supportive homes,” said David Johns, executive director of the NBJC. “Children deserve more than such ignorance, bias, and hate.”
In the U.S., there is a long history of racist bias in the foster care system, which has created barriers for Black foster parents and children hoping to be adopted. Black LGBTQ foster parents, in particular, have reported dealing with both racism and homophobia in their experiences trying to adopt.
“Despite today’s loss, we are grateful that the Court’s ruling does not allow all governments to turn a blind eye to taxpayer-funded agencies who discriminate against LGBTQ+ people,” said Johns.
“We will make our expectations clear to government service providers, businesses, employers, health care providers, and landlords. This fight is far from over.”