Recent Decisions LGBTQ+ Foster Parents Before The Supreme Court:
Philadelphia’s Non-Discrimination Policy Comes Into Conflict With Free Exercise On June 17, 2021, the Supreme Court issued a muchanticipated opinion in Fulton v. City of Philadelphia. The Court took votes on two freedom of religion issues: the immediate status of Catholic Social Services’ contracts with the city and the current standard for evaluating Free Exercise claims. A unanimous Court determined that the City of Philadelphia violated the Free Exercise Clause when it terminated contracts with Catholic Social Services over noncompliance with the city’s nondiscrimination ordinance. The Court voted 6-3 against reconsidering the use of the Employment Division v. Smith test, refraining from adopting a new standard for Free Exercise claims. Chief Justice John Roberts wrote the opinion of the Court, joined by Justices Stephen Breyer, Sonia Sotomayor, Elena Kagan, Brett Kavanaugh, and Amy Coney Barrett. Justice Barrett wrote a concurring opinion affirming the outcome and the inapplicability of Smith, joined by Justice Kavanaugh and, in part, by Justice Breyer. Concurring opinions from Justices Alito, Gorsuch, and Thomas focused on the use of Smith, urging reconsideration of the precedent. The case was closely watched by religious freedom activists and LGBTQ+ advocates alike for the potential fallout for LGBTQ+ families.
applicability and thus not subject to challenges based on Free Exercise claims. Invoking the Employment Division v. Smith precedent, the city asserted that all contract agencies were subject to compliance with the law regardless of religious identity. After the District Court for the Eastern District of Pennsylvania and the Third Circuit ruled against CSS, the agency petitioned to the Supreme Court. With oral arguments scheduled for November 4th, 2020, religious liberty advocates and LGBTQ+ groups were keen to find out how a new conservative majority would handle such a dramatic clash. The decision was ultimately narrow, turning on the specific character of foster care agencies. In finding that the agencies were not providing public accommodations in certifying foster parents, the Court determined that Smith was not applicable to the facts. Instead, the Court applied strict scrutiny to evaluate the CSS’s Free Exercise claim. Because a system of exemptions was available for placement objections based on other non-religious reasons, the Court ruled that the refusal
The conflict at the center of Fulton v. City of Philadelphia arose between the city and Catholic Social Services over the reach of the city’s nondiscrimination policy. Catholic Social Services of the Archdiocese of Philadelphia (“CSS”), operated by the local Roman Catholic authority, has operated a foster care agency in Philadelphia for decades. Contracts for foster care referral services established the agency’s relationship with the city. After same-sex partners applied for foster care placements and learned that select agencies operating under contracts with the Philadelphia Department of Human Services routinely refused to work with LGBTQ+ couples seeking to foster, the story was widely publicized across the city. In 2018, the city offered a new contract to CSS with express terms requiring compliance with the Fair Practices Ordinance, which would have prohibited outright refusal to place children based on the sexual orientation of foster parent applicants. CSS and select foster parents, among them the named plaintiff Sharonell Fulton, sued, alleging that this contract term would require CSS to violate the organization’s sincere religious beliefs. The city responded that the Fair Practices Ordinance was a neutral law of general
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The Advocate
September 2021