Supreme Court rules for religious liberty in case involving foster care, same-sex couples

A Catholic foster care agency refused to work with same-sex couples.

June 17, 2021, 12:51 PM

In a unanimous ruling, the Supreme Court on Thursday sided with religious freedom in a case involving a clash over Philadelphia's anti-LGBT discrimination policy.

The justices, in an opinion written by Chief Justice John Roberts, ruled for Catholic Social Services in a case involving foster care and same-sex couples.

PHOTO: The sun rises behind the U.S. Supreme Court in Washington, June 1, 2021.
The sun rises behind the U.S. Supreme Court in Washington, June 1, 2021.
Erin Scott/Reuters, FILE

The dispute was over whether the city of Philadelphia can enforce a non-discrimination policy for sexual orientation on CSS, a leading faith-based child welfare agency that does not work with same-sex foster parents.

Philadelphia refused to renew its contract with CSS for the city's foster care program in 2018 because of the group's refusal to accept gay or lesbian applicants. The agency and several Catholic foster parents sued the city, alleging it targeted their religious beliefs in violation of the First Amendment.

"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," Roberts wrote."The refusal of Philadelphia to contract with CSS for the provision of foster care services unless it agrees to certify same-sex couples as foster parents cannot survive strict scrutiny, and violates the First Amendment," he said, referring to the highest standard the court has for finding laws constitutional.

Roberts' opinion is a significant affirmation of religious liberty and blow to the LGBT equality movement which has sought to sideline faith-based groups that refuse gays and lesbians from taxpayer-funded initiatives.

CSS argued that it was unfairly targeted by the city in 2018 simply because of its religious beliefs; it's been working in foster care for nearly 200 years in Philly and never been approached by or turned away a same-sex couple. The city argued that its rules were neutral and generally applied on all taxpayer-funded contractors.

"There had been no complaints against Catholic Social Services," said Lori Windham, an attorney with the Becket Fund for Religious Liberty, which is representing Fulton and Catholic Social Services, told ABC News last October. "No same-sex couple had ever approached them. But if one did, they would help them to find an agency that could serve that family and help them on their foster care journey."

Lower federal courts had rejected CSS claims of religious discrimination, upholding the city's ability to set neutral terms for all contracts involving taxpayer funds.

Of the 24 private agencies in Philadelphia's foster care network, Catholic Social Services is the only one that would deny applications from same-sex couples as a matter of faith.

Roberts wrote that the city's policy infringes on First Amendment religious rights because it is not "generally applicable" across the board, by allowing for exemptions at the discretion of a the city's Commissioner of the Department of Social Services.

"Maximizing the number of foster families and minimizing liability are important goals, but the City fails to show that granting CSS an exception will put those goals at risk. If anything, including CSS in the program seems likely to increase, not reduce, the number of available foster parents," he wrote.

Roberts goes on to acknowledge the importance of affirming LGBT people but says there must also be room for people with conflicting religious beliefs.

"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," he said. "On the facts of this case, however, this interest cannot justify denying CSS an exception for its religious exercise. The creation of a system of exceptions under the contract undermines the City’s contention that its nondiscrimination policies can brook no departures."

Catholic teaching says that marriage is between one man and one woman. The church does not consider LGBT families morally compliant.

Philadelphia Solicitor Diana Cortes called the decision "a difficult and disappointing setback for foster care youth and the foster parents." The city has more than 4,100 kids in resource homes currently, including 360 in group homes awaiting placement with a family.

Advocates say LGBT young people make up a high share of those in the foster care system and that LGBT foster parents are in high demand.

"With today’s decision, the Court has usurped the City’s judgment that a non-discrimination policy is in the best interests of the children in its care, with disturbing consequences for other government programs and services," Cortes wrote in a statement. "At the same time, the city is gratified that the Supreme Court did not, as the plaintiffs sought, radically change existing constitutional law to adopt a standard that would force court-ordered religious exemptions from civic obligations in every arena. "

Studies show LGBT young people are disproportionately in need of foster care and that many who were removed or ran away from foster placements did so because of a caregiver's hostility toward their sexual orientation or gender identity.

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