The Supreme Court
's decision on Thursday to allow a Catholic foster agency in Philadelphia
to discriminate against prospective LGBTQ parents shook some queer and activist communities.
The unanimous decision in Fulton v. City of Philadelphia has rekindled long-held fears that legal claims to “religious freedom,” largely advanced on behalf of white, Judeo-Christian groups, will increasingly be used to marginalize gay, lesbian, and gender
, as well as people of other faiths.
After learning that Catholic Social Services would not work
with same-sex couples, the City of Philadelphia stopped referring children
to the agency in 2018. The American Civil Liberties Union
, the National Association of Social Workers, and a slew of other advocacy groups backed Philadelphia's decision not to send children to CSS, and the ACLU
represented the city in a lawsuit
filed on CSS's behalf.
The advocacy groups wrote in a 2018 amicus brief that allowing anti-LGBTQ discrimination
would disproportionately 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 wrote.
However, the United States
Supreme Court on Thursday ordered Philadelphia to renew the Catholic Social Services foster care
contract, effectively shielding CSS from Philadelphia's anti-discrimination policies despite the fact that it is taxpayer-funded.
However, the court did not rule that religious organizations have the right to disregard anti-discrimination laws; rather, it argued that Philadelphia law allows for exemptions to certain regulations and that the city did not pursue those options prior to terminating the contract with CSS.
A majority on the Court agreed in an opinion delivered by Chief Justice John Roberts
that “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, advocates for LGBTQ rights
measured their reactions to the news
, portraying the ruling's preservation of anti-discrimination laws broadly as a victory, but also pointing to CSS's permitted discrimination as a potential foreshadowing of future rulings.
The ACLU said in a press release in response to the decision that the ruling was “narrow,” arguing that it merely forced the city to renew CSS’s foster care contract because Philadelphia has the authority to exempt certain agencies from certain regulations on a discretionary basis.
“However, the court did not establish a general right for religious organizations to violate nondiscrimination laws,” the ACLU stated.
“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 fecundity,” said Lambda Legal, a prominent organization that challenges anti-LGBTQ discrimination in court.
Fulton v. Philadelphia, in his opinion, hinged on a technicality: the city had not yet provided evidence that CSS had discriminated; it had only learned CSS has an anti-LGBTQ discrimination policy. He stated that if evidence of the agency's discrimination was introduced, it would put pressure on the Court to take a historical look at the impact of discriminatory foster care policies.
“When confronted with such facts in a future case, the Court will be forced to grapple for the first time with the ways such discrimination harms foster children, whose needs and best interests must always be paramount in child welfare cases,” he said.
The National Black
Justice Coalition, an organization dedicated to eradicating racism
, and bias against same-gender couples, addressed the court directly and stated that its members were bracing themselves for future discriminatory rulings.
“All nine Supreme Court justices voted to allow legal discrimination in Philadelphia, which will only harm children in the foster care system, who are all deserving of loving and supportive homes,” said David Johns, executive director of the NBJC.
There is a long history
bias in the foster care system in the United States, 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 defeat, we are grateful that the Court’s decision does not allow all governments to turn a blind eye to taxpayer-funded organizations that discriminate against LGBTQ+ people,” Johns said.
“We will communicate our expectations to government service providers, businesses, employers, health care
providers, and landlords; this fight is far from over.”