Why some experts are 'relieved' about the Supreme Court ruling on anti-LGBTQ foster care

The Supreme Court ruled unanimously on Thursday in favor of Catholic Social Services, a religious foster care agency that was frozen out of contracts with the city of Philadelphia because it refused to certify same-sex couples as prospective foster families, citing its religious beliefs. But it was a narrow ruling on the facts of the case, experts said, and did not broadly decide that religious agencies could discriminate against LGBTQ people.

Before the ruling came out, civil rights experts said the case, Fulton v. Philadelphia, could have huge implications for how LGBTQ people access government services. They worried that the decision could harm LGBTQ people’s ability to use food banks, homeless shelters, and other services from private agencies that receive taxpayer money in addition to foster care.

In 2018, the city of Philadephia became aware that the agency Catholic Social Services refused to work with same-sex couples who wanted to foster children. The group refused to change its policy when the city found it be in violation of its nondiscrimination ordinance, and subsequently lost its contract with the city. The agency sued the city later that year.

On Thursday, the court decided that the city’s refusal to contract with the agency unless it considered LGBTQ families violated the Free Exercise Clause of the First Amendment of the Constitution.

Chief Justice John Roberts delivered the opinion and wrote, “As an initial matter, it is plain that the City’s actions have burdened CSS’s religious exercise by putting it to the choice of curtailing its mission or approving relationships inconsistent with its beliefs.”

Shannon Minter, the legal director for the National Center for Lesbian Rights, said that although the court ruled for Catholic Social Services, the decision was made on narrow grounds specific to the case. He said that this means that the decision “leaves existing law largely unchanged & creates no sweeping new religious exemption.”

Sharita Gruberg, vice president for the LGBTQ research and communications project at the Center for American Progress, said on Wednesday, before the decision came out, “It undermines the whole purpose if the providers refuse people because of non-merit factors. That’s exactly what is happening here.”

She added, “For LGBTQ folks more broadly, we’re really concerned about what the court could do in granting a license to discriminate and how that not only impacts the ability of LGBTQ people to foster and adopt but access a whole range of critical services that people need.”

After the ruling came out on Thursday, Gruberg said she was glad that the decision was narrow but said the ruling is still a problem for LGBTQ Philadelphians.

“I’m heartened that the Court did not find faith based taxpayer funded service providers have a broad license to discriminate but do worry about same-sex couples who want to provide loving and affirming homes facing discrimination in Philadelphia,” Gruberg stated to the American Independent Foundation in an email. “Anti-LGBTQ discrimination is widespread and has severe consequences for the well-being of LGBTQ people.”

Leslie Cooper, deputy director of the American Civil Liberties Union LGBTQ & HIV Project, stated in a press release reacting to the news, “We are relieved that the court did not recognize a license to discriminate based on religious beliefs.”

Cooper added, “The decision will not affect any foster care programs that do not have the same system for individualized exemptions that were at issue here.”

Supreme Court Justices Brett Kavanaugh and Amy Coney Barrett’s statements in the opinion were still disconcerting to some legal experts who expect these issues to return to the court.

Sejal Singh, a lawyer for Public Citizen, said, “Barrett and Kavanaugh say arguments for overruling Smith are ‘compelling’ — effectively inviting other opponents of LGBTQ rights to come back and try again.”

Despite the narrow ruling, Republican lawmakers still celebrated the news.

Sen. Josh Hawley (R-MO) and Reps. Gary Palmer (R-AL) and Robert Aderholt (R-AL) said they were happy to see this decision from the court.

Aderholt tweeted, “This decision is a monumental win for religious liberty. The court’s 9-0 decision, with even the liberal justices joining in, shows how important religious liberty is to the very foundation of our country.”

Published with permission of The American Independent Foundation.