Supreme Court Embraces Religious Rights For Foster Agency That Rejected To Work With Same-Sex Couples

On Thursday, the Supreme Court exceeded expectations by delivering a unanimous — but limiting — decision in favor of a Catholic foster care organization that had been pursued by Philadelphia officials for refusing to accept same-sex couples as adoptive parents.

The Supreme Court ruled 9-0 that “Philadelphia violated the First Amendment when it froze the contract of a Catholic Foster Care Agency that refused to work with same-sex couples as potential foster parents because the agency believes that marriage should be between a man and a woman because the agency believes that marriage should be between a man and a woman,” According to CNN.

“The dispute arose because Catholic Social Services — which was receiving taxpayer funds — was unwilling to work with LGBTQ couples as foster parents out of religious objections to same sex marriage. The policy was brought to the attention of the city in 2018 after inquiries from a local newspaper, and soon after the government put a freeze on the contract. The group, led by long-time foster parent Sharonell Fulton who has fostered more than 40 children over 25 years, brought suit,” the outlet noted.

According to the group’s brief, the agency had never been contacted by a same-sex couple wanting to adopt and had never turned anyone down.

“The issue before the court was whether Philadelphia could require foster agencies to comply with its non-discrimination law,” CNN added.

The agency declared that it shouldn’t have to compromise its religious beliefs in order to get government contracts.

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,” wrote Chief Justice John Roberts in his decision for Catholic Social Services.

“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…violates the First Amendment,” he wrote.

Foster care agencies are not public accommodations, according to the six justices who wrote the majority decision.

“Certification as a foster parent…is not readily accessible to the public. It involves a customized and selective assessment that bears little resemblance to staying in a hotel, eating at a restaurant, or riding a bus,” Roberts added in his opinion, writing for the six justices.

Although both Catholic Social Services and three of the Court’s conservative justices — Justice Samuel Alito, Justice Clarence Thomas, and Justice Neil Gorsuch — wanted the Court to go even further, reversing the landmark case, Employment Division, Department of Human Resources of Oregon v. Smith and allowing broad religious exemptions to anti-discrimination laws, but ruling was limited.

Employment Div. v. Smith is a 1990 decision “that said religious groups are not exempt from general local, state, and federal laws, including those banning discrimination. A decision to overturn that ruling would make it easier for businesses to claim a religious exemption from laws that ban discrimination on the basis of sexual orientation. But civil liberties groups say it would blunt efforts to fight discrimination,” per NBC News.

The ruling on Thursday creates a narrow exception to anti-discrimination legislation, but it is unlikely to have a broader effect on First Amendment law, as Justice Alito emphasized in his concurring opinion.

“The Court has emitted a wisp of a decision that leaves religious liberty in a confused and vulnerable state. Those who count on this Court to stand up for the First Amendment have every right to be disappointed — as am I,” Alito said.

Experts speculated that Roberts stepped in to push for “incrementalism,” a slower, more cautious approach to altering precedent, as he had done in past cases.

Yes. CJ Roberts stepped in again for incrementalism, and it looks like he persuaded the liberal justices to go along with him to prevent the more conservative justices from overturning Smith.

There will be pages and pages written about this. https://t.co/umc4HUy5jl

— Gabriel Malor (@gabrielmalor) June 17, 2021

The Becket Fund for Religious Liberty praised the decision as a “victory for heroic foster moms and #religiousfreedom.”

The decision, according to the organization, “ensures that religious groups like Catholic Social Services—who serve kids regardless of race, religion, sex, or sexual orientation—can continue their great work.”

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