CM – The Supreme Court ruled on a major religious freedom case against LGBTQ families


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The court sided with a Catholic agency that would not place foster children with same-sex couples, but turned down a motion for a more comprehensive decision Non-discrimination policy from.


Zoe Tillman

Last updated June 17, 2021 at 11:10 am ET

Posted on Jun 17, 2021 at 10:51 am ET

WASHINGTON – The US Supreme Court ruled Thursday that the city of Philadelphia violated the First Amendment by refusing to work with a Catholic welfare agency that would not place foster children with same-sex couples.

In a unanimous opinion from Chief Justice John Roberts Jr., the court found that Philadelphia had overburdened the religious rights of Catholic Social Services by forcing the agency to choose between maintaining their contract with the city or certifying same-sex people choose couples as foster parents against their religious beliefs.

The ruling does not prevent local governments like Philadelphia from having policies on the books that discourage outside agencies doing business with the city from doing business with the city on the basis of sexual orientation discriminate. However, the court ruled that such a non-discrimination policy must be « generally applicable » and Philadelphia’s policy must not, the judges concluded. The court denied a motion from the Catholic Social Service (CSS) to make a more far-reaching decision that would have made it more difficult for local governments in general to defend non-discrimination policies against religious challenges.

The problem with Philadelphia’s non-discrimination policies, as stated in his Treaty with the Catholic Authority was that it provided for a variety of exceptions and that the decision whether to grant an exception was left to the « sole discretion » of an individual city official. That means that the directive is not « generally applicable » and the city has to overcome a much higher bar to justify a burden on the religious beliefs of the social services agency, wrote Roberts.

Fulton v Philadelphia was the most recent case to peg The court was heard to examine the balance between the legal protections that exist for LGBTQ people and believers. When the case was heard in November, the Justice Department under the then President Donald Trump supported the Catholic agency.

The Philadelphia case was reminiscent of the Masterpiece Cakeshop case, which the judges had ruled in 2018 and which also dealt with the interaction between states and local non-discrimination laws and religious exercise rights. The court then ruled in favor of a baker who, on religious grounds, refused to bake wedding cakes for same-sex couples, but did so in a narrow fashion to avoid a broader precedent that would apply to future fights between same-sex adversaries and state and local Governments trying to enforce civil rights laws that protect LGBTQ people.

CSS, a religious nonprofit affiliated with the Archdiocese of Philadelphia, had served as the city’s private care provider for decades. Potential foster parents are recruited and screened by CSS and other private agencies, and then the city refers children who come into the city’s custody for abuse or neglect to these agencies for foster care.

2018 froze Philadelphia opened new referrals to CSS after a reporter learned that the agency had a religious policy against working with same-sex couples who wanted to be foster parents. The agency has filed a lawsuit. Philadelphia said CSS’s practice violates the city’s anti-discrimination rules. CSS argued that the city targeted the group for their religious beliefs in violation of Pennsylvania’s First Amendment and Religious Freedom Protection Act.

A federal judge denied CSS’s motion for an injunction compelling the city would resume the placement of foster families. In April 2019, the US District Court of Appeals for the 3rd District also sided with Philadelphia, ruling that the city’s policy of obliging providers not to discriminate against same-sex couples was a « neutral, generally applicable law. » The Catholic Social Service’s religious beliefs did not entitle the agency to an exception to this policy, the appeals court found.

CSS claimed Philadelphia created a problem that did not exist – that no same-sex couple approached CSS and they did therefore never turned anyone away and that there were many other care facilities that would work with same-sex couples. The agency argued that the city only blocked access to the families CSS worked with when there was an « urgent » need for foster families.

Philadelphia countered that every argument that the city made CSS for its religious beliefs are undermined by the fact that the city continues to sign contracts with the group for a number of other child welfare services. As a contractor who received public funds and performed a “public function”, CSS was obliged to adhere to the city’s anti-discrimination policy, argued the city’s lawyers.

CSS had asked the court not only to determine that the city violated the agency’s religious freedom in dealing with the problem of finding foster families, but also went further and made a 1990 decision, Employment Division v. Smith, rethinking, gave government agencies more flexibility in enforcing laws that encumbered a person’s religious practice.

Zoe Tillman is a senior legal reporter for BuzzFeed News and is based in Washington, DC.

A BuzzFeed News investigation conducted with the International Consortium of Investigative Journalists based on thousands of documents the government refused to see.


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