David Nahmias, Staff Attorney
Earlier today, the U.S. Supreme Court issued a unanimous 9-0 decision in Fulton v. City of Philadelphia, No. 19-123, narrowly holding that the City of Philadelphia violated the First Amendment when it stopped referring prospective foster children to Catholic Social Services, a third-party private foster care agency, because the agency refused to certify same-sex couples as foster partners. While this is disappointing news, the limited ruling does not create a broad new license to discriminate or create a right for taxpayer-funded foster care agencies to discriminate. Government may continue to enforce non-discrimination laws, including laws prohibiting discrimination on the basis of sexual orientation and gender identity, as long as they do so consistently and fairly. Advocates for LGBTQ+ and marginalized communities live to fight another day.
Catholic Social Services (CSS) is a taxpayer-funded foster care agency in Philadelphia that helps place prospective foster children with parents. Under Pennsylvania law, this placement process includes conducting a home study to evaluate the potential family’s “ability to provide care, nurturing and supervision to children, existing family relationships, and ability to work in partnership with a foster agency,” (quoting 5 Pa. Code § 3700). The agency has the statutory authority to certify the family to become foster parents. CSS refused to certify same-sex couples as foster parents because of its stated religious beliefs that marriage is “between one man and one woman.” Upon discovering this policy, the City stopped referring children to the agency and refused to renew its contract unless the agency began accepting same-sex couples. Philadelphia argued that the CSS policy violated a non-discrimination provision in its standard foster care contract as well as the non-discrimination requirements of the citywide Fair Practices Ordinance.
CSS refused to certify same-sex couples as foster parents because of its stated religious beliefs that marriage is “between one man and one woman.”
The Court plainly found that the City’s actions did not meet the general applicability test. First, its foster care contract with CSS created an opportunity for discretion. Under the standard contract’s non-discrimination provision, the agency agreed not to reject prospective foster parents because of their sexual orientation unless an exception was granted by the City in its sole discretion. The Court said that such a system of discretionary “individual exemptions” from the non-discrimination obligation—which the Philadelphia did not intend to grant to CSS—“render[ed] the contractual non-discrimination requirement not generally applicable” under Smith.
The Court also ruled that the local non-discrimination ordinance at the root of this case did not in fact cover CSS, and therefore there was no need to assess the law’s general applicability. The city had said that the foster care agency’s refusal to serve same-sex couples violated its local law prohibiting discrimination on the basis of sexual orientation in places of public accommodation. The Supreme Court rejected that argument, finding that foster care did not fall under the scope of a “place of public accommodation” as defined by the ordinance itself. The Court said that certification as a foster parent, which is one of the primary duties of a private foster care provider, is not a service that “is readily accessible to the public,” akin to “staying in a hotel, eating at a restaurant, or riding a bus.”
The Rainbow Flag flies proudly at Philadelphia City Hall, but the court held that the city’s decision to rescind its contract with CSS and not exempt it from its non-discrimination obligation violated the First Amendment.
Having disposed of the general applicability question under Smith, the Court was thus left with determining whether or not the city’s contractual non-discrimination requirement could survive strict scrutiny. The Court held it could not. Philadelphia asserted that it had a compelling interest in maximizing the number of foster parents, avoiding legal liability for discriminatory conduct, and ensuring equal treatment of prospective foster parents and foster children. Yet these arguments were deemed “insufficient” to justify denying an exception to CSS from the non-discrimination obligation. Therefore, the Court struck down the City’s requirement that CSS and other foster-care providers certify same-sex couples without exception as an unconstitutional infringement on religious expression.
While all the Justices agreed with the ultimate outcome, not all agreed with the majority’s reasoning, particularly as to whether Smith should remain good law. In one concurrence, Justice Barrett, joined by Justices Kavanaugh and Breyer, found Smith to be “more silent than supportive” on whether the First Amendment required religious exceptions from generally applicable laws. Justice Barrett expressed skepticism for applying strict scrutiny when a “neutral and generally applicable law burdens religious exercise.” Nevertheless, she stopped short determining whether Smith should be overruled or what standard should replace it, (Barrett, J., concurring). Justice Alito also concurred with the majority’s result. In his opinion, joined by Justices Gorsuch and Thomas, he articulated the “dangers posed by Smith” and the urgent need for the Court to decide the “correct interpretation” of the Free Exercise clause, (Alito, J., concurring). Justice Alito observed that the majority’s narrow decision was unlikely to resolve or prevent similar disputes in cases that involve faith-based foster care and adoption agencies unless they have a factually similar contractual provision. And in a third concurrence, Justice Gorsuch, joined by Justices Thomas and Alito, raised the “unworkable” practical issues of Smith and took issue with the majority’s assumption that the City’s rule is “indeed ‘neutral’ toward religion,” (Gorsuch, J., concurring).
The decision also continues to show the importance of inclusive non-discrimination laws that protect LGBTQ+ people, including the Equality Act and John Lewis Every Child Deserves a Family Act.
Many LGBTQ+ advocates feared that the Supreme Court would use the Fulton decision as an opportunity to license discrimination against vulnerable groups on religious bases. Fortunately, the majority decision was narrowly focused on Philadelphia’s contracts with foster care agencies and made no general right for taxpayer-funded foster agencies to discriminate. Today’s decision is an important reminder that the primary responsibility of child services agencies is to help ensure that kids can be in loving homes where they can thrive—including those of LGBTQ families. Child welfare groups around the country work tirelessly to ensure that foster youth, including LGBTQ youth (who are disproportionately represented in the foster care system), are placed in loving, affirming homes, and to ensure that LGBTQ adults who want to become foster parents can do so. The Fulton decision also continues to show the importance of inclusive non-discrimination laws that protect LGBTQ+ people, including the Equality Act and John Lewis Every Child Deserves a Family Act, which would prohibit discrimination on the basis of sexual orientation, gender identity, marital status, or religion in federally funded child-welfare agencies. No one should have to live in fear of discrimination simply because of who they are—including LGBTQ young people and same-sex couples looking to provide loving homes to vulnerable youth.
In spite of the loss, Philadelphia Family Pride, a party in the case, sent a message to youth in foster care in the city, especially LGBTQ youth, that they are loved and the agency remains committed to working hard to make sure there are loving, affirming homes for them in Philadelphia—and that for LGBTQ adults who are considering becoming foster parents, that they are needed and just as qualified to be foster parents as anyone else.