The next landmark case for LGBTQ rights before the Supreme Court of the United States will be heard the day after Election Day.
The Court in Fulton v. City of Philadelphia will rule on the question of whether religious foster care agencies have a First Amendment right to refuse to work with LGBTQ people. It would also be one of the first cases that Amy Coney Barrett presides over as a Supreme Court justice.
After hearing the case by phone on November 4, they will dismiss and go into conference on Friday. That means a ruling, or an order for the opinions, could come as soon as November 9. Fulton v. Philadelphia is the last of five cases being argued before the court next week, Barrett’s first full week. Exact details of her participation, if they have been finalized, have not been announced.
“There are lots of potential consequences here,” Louise Melling, Deputy Legal Director of the American Civil Liberties Union (ACLU), said.
The case in question involves the Catholic Social Services (CSS), associated with the Archdiocese of Philadelphia, losing its city contract in 2018. After an article in the Philadelphia Inquirer highlighted two organizations that refused to refer LGBTQ couples or single parents as potential adoption homes, the city council issued a directive to Philadelphia’s Department of Human Services to refuse to contract to CSS and the other group, Bethany Christian Services, if they did not reverse their policies.
Bethany decided to adhere to Philadelphia’s discrimination rules, but when CSS refused, the City of Brotherly Love terminated their foster care contract. CSS and two of their foster parents, Sharonell Fulton and Toni Lynn Simms-Busch, filed lawsuits against the city’s decision. The Becket Fund for Religious Liberty has represented them.
CSS admitted to discriminating against same-sex couples. It said that it does not certify same-sex couples as foster parents, even if they are qualified under state law. It also refused home studies for same-sex couples considering adoption. Their position is that doing either may lead to what appears as an “endorsement” of LGBTQ people by the organization, violating their religious rights and freedom to expression. CSS has decided it is okay working with single parents but not same-sex couples.
CSS was ruled against in federal court in July 2018 and the Third Circuit Court of Appeals followed. They appealed in emergency petitions to the Supreme Court, which declined to hear the petition during that session, before the contract between the two parties expired. The petition was refiled in 2019, and responses were solicited from the involved parties. After four months of conferencing, the petition was accepted this February.
Now, with six conservative justices instead of just four, Chief Justice John Roberts’s Supreme Court will hear the arguments and decide whether religious liberty trumps protections from discrimination. The case was scheduled in August for November, before the passing of Ruth Bader Ginsburg.
The Trump administration’s legal team submitted a brief on behalf of the United States government positing that “governmental action tainted by hostility to religion fails strict scrutiny almost by definition,” supporting CSS and other religious organizations’ right to “religious freedom” across the country.
CSS has lost every time it has gone before a judge in court. Trump’s conservative court may be their one and only opportunity for a ruling in their favor, possibly giving them a final victory.
Philadelphia’s lawyers are being tasked with representing thousands of current LGBTQ families, and the future of many to come in America. The city’s position, according to SCOTUSblog‘s summation of their legal briefings, is that “the lawsuit had originally focused on the constitutionality of the city’s decision to freeze referrals under the 2018 contract, which has now expired.”
Thus “the only real question left in the case is whether the nondiscrimination requirement is unconstitutional. And the answer is no.”
Further, the city claims that their “nondiscrimination requirement” for contractors is legal because “nothing in it suggests that it makes distinctions based on religion,” which is consistent with lower court rulings. CSS has to prove they were targeted by DHS “because of” their religious beliefs.
Philadelphia is joined by two organizations, the Support Center for Child Advocates, which provides legal assistance and advocacy for abused and neglected children in the Philadelphia area, and the LGBTQ organization Philadelphia Family Pride. They are being led by counsel from the ACLU, among several other lawyers representing them.
Several organizations have filed briefs in support on both sides. Seventy-six members of Congress, churches like the Church of Latter-Day Saints, and states including Texas, Nebraska, Arizona, and Ohio filed briefs in support of CSS. They say that they find working with religious organizations essential to their foster care services.
The ACLU cites “over 1,000 people” that filed friend-of-the-court briefs in support of them, including “child welfare groups, religious organizations, former foster youth, and nearly half of states and dozens of cities and mayors.” The American Psychological Association, Anti-Defamation League, 24 U.S. Senators and 148 Members of the House are among them.
“The case has implications not only for the future of foster care, but for the protection of all people from discrimination in the alleged name of religion,” the ACLU states.