Supreme Court foster care ruling likely to prompt more tests of religion vs. LGBTQ rights

This June 8, 2021, file photo shows the Supreme Court building in Washington.
John Fritze

WASHINGTON – After a series of landmark victories at the Supreme Court in recent years, LGBTQ advocates were dealt a blow this week when the justices sided with a Catholic group that declined to consider same-sex couples as foster parents. 

While the outcome of the Philadelphia foster care dispute was not a surprise, the unanimous decision opened a debate about its impact in other areas of the law where the First Amendment's protection of religion comes into conflict with policies that prohibit discrimination on the basis of sexual orientation or gender identity. 

One point on which advocates on both sides of the issue agreed: Fulton v. Philadelphia will prompt new litigation testing when religious groups may choose to treat LGBTQ Americans differently, and when they are prohibited from doing so. 

"Until today we have seen a string of Supreme Court decisions upholding equality," said Currey Cook, senior counsel at the LGBTQ advocacy group Lambda Legal. "But it's clear as day that organizations that want to be able to discriminate against LGBTQ people ... are trying to use religious freedom as the vehicle to get there." 

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Catholic Social Services in Philadelphia said its religious views keep it from screening same-sex couples as potential foster parents. The City of Philadelphia, which contracted with the Catholic group to do that work, countered that all of its foster care agencies are required to not discriminate on the basis of sexual orientation.

But in an opinion written by Chief Justice John Roberts on Thursday, the court held that Philadelphia had allowed exceptions to its non-discrimination policy in other contexts. Because of that, the court concluded the policy was not applied equally to religious and secular entities. And that ultimately meant that the city's non-discrimination rule could not withstand the court's highest level of constitutional scrutiny.

"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," Roberts wrote for the court.  

In this Oct. 8, 2019, file photo, supporters of LGBTQ rights hold placards in front of the Supreme Court, on Capitol Hill in Washington.

Put another way, if a law banning discrimination that affects a church or religious employer has exemptions for secular entities, then it will automatically face a high level of scrutiny from the Supreme Court when applied to those religious interests. That aligns with a series of emergency decisions the court handed down over the past year involving capacity limits due to the coronavirus pandemic that applied to churches and other houses of worship.

In several of those cases, the court ruled that because the capacity limits included carve-outs for secular, essential businesses, they could not be applied to churches.     

"It's been implicit in some of the things the court has been doing in recent years, especially in these COVID cases," said Richard Garnett, director of the University of Notre Dame law school program on church, state and society. "But I think they have a pretty straightforward statement of that [in the Philadelphia case] endorsed, presumably, by all the justices." 

"That's a significant doctrinal development," Garnett said. 

The question for legal scholars and advocates is how much of an impact the decision will have beyond the foster care setting. Could religious-affiliated hospitals compelled to perform gender reassignment surgeries by state non-discrimination policies rely on the case to bring a suit in federal court, for instance? What about religious schools that make dormitory assignments based on sex assigned at birth and not gender identity?

Several court observers described the ruling in the case as narrow because the justices declined to overturn a 1990 decision in which the court held that governments may impose restrictions that affect a religious entity as long as those restrictions are "generally applicable" to religious and secular activities. If they had overturned the decision, it would have made it far easier for religious groups to challenge laws. 

James Esseks, director of the LGBTQ & HIV Project at the American Civil Liberties Union, compared the case to the court's 2018 decision absolving a Colorado baker of discrimination for refusing to create a custom wedding cake for a same-sex couple. That decision left unresolved the underlying question of whether businesses could refuse wedding services to gay couples. 

"In Fulton, the court once more ruled for the religious plaintiff on narrow grounds and refused to create a constitutional right to discriminate," Esseks said. 

But Tobias Wolff, a professor at the University of Pennsylvania Carey Law School, said the decision in Fulton could have much broader implications if religious organizations begin challenging any anti-discrimination law that does not include a specific exemption for religious objection. 

"The easier course for government agencies and decision makers is going to be to grant religious exemptions whenever people ask for them, because the alternative is that there can be a constitutional claim whenever they build some discretion into the administration of their programs," Wolff said. "They're providing tools with which advocates can get a significant portion of the way there." 

After a string of recent losses in cases where LGBTQ advocates have gone head-to-head with religious groups the decision Thursday drew cheers from religious freedom advocates who have argued the court has given short shrift to First Amendment claims. 

"I think what the Supreme Court has done is given a roadmap where they're going to look first at if the government is handing out exceptions for other people and if the government is handing out exceptions for other people then, 'Okay, why did you crack down on the religious person?'" said Lori Windham, senior counsel at Becket, a nonprofit law firm that represents litigants fighting for religious groups.

The Fulton decision comes almost a year after the court handed down a landmark decision barring workplace discrimination against LGBTQ employees. In that case, a majority of the court found that a federal law that banned workplace discrimination on the basis of "sex" also banned discrimination on the basis of sexual orientation or gender identity.

It comes six years after the court legalized same-sex marriage in Obergefell v. Hodges.

(FILES) In this file photo taken on June 26, 2015, people celebrate outside the Supreme Court in Washington, DC. The court ruled that same-sex marriage is a nationwide right. - The court on June 17, 2021, unanimously supported a Catholic adoption agency's rejection of same-sex foster parents, in a case that underscored the court's commitment to religious freedom. (Photo by Mladen ANTONOV / AFP) (Photo by MLADEN ANTONOV/AFP via Getty Images) ORG XMIT: 0 ORIG FILE ID: AFP_9CF3GH.jpg

Appeals courts in Chicago, Atlanta and Richmond, meanwhile, have all held that schools violate federal law when they prohibit transgender boys from using the same restrooms as cisgender boys. A case challenging those rulings is pending at the Supreme Court

Christina Wilson Remlin with the child welfare organization Children’s Rights, said the decision Thursday underscored the// need for a congressional response. 

"The Supreme Court’s 9-0 ruling is based on narrow grounds limited to the facts of this case," she said. But it "drives home why we need to pass federal legislation to provide consistent anti-discrimination protections for all LGBTQ+ people."