The U.S. Supreme Court is expected to issue its opinion within the month on a closely watched case that grapples with religious rights and anti-LGBTQ discrimination.
Fulton v. The City of Philadelphia was argued before the country’s highest court in November and is one of a handful of opinions expected to be released before the end of June. The key question before the court is whether Philadelphia violated the Constitution when it canceled a contract with a Catholic agency that refuses to screen same-sex couples to become potential foster parents.
Here’s some background on the case:
How did this case come about?
In March 2018, a same sex couple from Philadelphia told The Inquirer that a Christian foster care agency, Bethany Christian Services, would not screen same-sex couples interested in becoming foster parents, despite a citywide lack of certified foster families. The city subsequently learned that both Bethany and Catholic Social Services were in violation of its nondiscrimination ordinance as city contractors receiving taxpayer money but refusing to work with LGBTQ parents.
The city told both agencies it would not renew contracts unless the agencies abided by the nondiscrimination rule. Bethany changed its policy to comply. Catholic Social Services refused and filed a lawsuit against the city. The suit argued that requiring CSS to follow its nondiscrimination requirement violated its free exercise of religion. As a Catholic organization, CSS said, working with same-sex couples would go against its religious opposition to homosexuality. The agency noted it would refer any same-sex couple to another foster agency but claimed it never had an LGBTQ couple seek certification through them. The organization does work with LGBTQ youth.
How does foster care work in Philadelphia?
The city handles the placement of children in its care but contracts with several outside agencies — CSS is one of about 30 — to certify parents eligible to foster children.
Where does the name Fulton come from?
Catholic Social Services filed the lawsuit along with two foster care parents, Sharonell Fulton and Toni Simms-Busch, two Catholic women who have each spent decades fostering children through CSS. Fulton’s name appears first on the filing, making it the de facto name of the case.
What are the key legal questions before the court?
Whether a government violates the First Amendment rights of religious agencies by requiring them, in what they believe to be a violation of their faith, to consider same-sex couples as potential foster parents.
What would be the impact of a reversal?
The court’s opinion was written narrowly, sidestepping larger questions about the legality of non-discrimination clauses that might run up against religious rights. The justices instead decided the case on specific language in Philadelphia’s contracts with foster screening agencies that lets the city’s Commissioner of Human Services grant exceptions to the non-discrimination rules.
The city maintained that the matter was moot because, despite the language in the contract, no exemptions had ever been made. But the court ultimately rejected that argument, ruling that the existence of an exemption clause and refusal to grant an exemption to CSS meant the law was not being applied neutrally.
It’s unclear exactly what the impact will be beyond Philadelphia, though some legal experts have said the ruling could make it easier for religious organizations to claim exemptions to government non-discrimination policies.
In issuing its opinion, the court will also revisit a 1990 Oregon case
CSS specifically wants the court to revisit the 1990 case Employment Division v. Smith, in which the court ruled against two members of the Native American Church, who ingested peyote during a religious ritual. Alfred Smith and Galen Black were fired as counselors at drug rehabilitation centers and barred from receiving unemployment because peyote was an illegal substance under Oregon law.
In that case, the court wrote that so long as a law is applied to everyone, it is permitted and thus Smith and Black’s religious freedoms did not protect them from the state’s laws on employee misconduct and drug use.
Philadelphia has argued that its nondiscrimination clause would be upheld by the Smith ruling because it applies equally to all contractors and is not targeted toward CSS.
How did the case get to the Supreme Court?
In a July 2018 ruling, the district court ruled in favor of the city, saying that it had applied its nondiscrimination clause neutrally and that it did not violate the agency’s rights. CSS appealed and in April 2019 the U.S. Court of Appeals for the Third Circuit affirmed the lower court’s ruling.
When will there be an opinion?
The Supreme Court is expected to release its opinion before the end of June.
What other parties are involved?
Several groups have signed on to both sides of the case. The former Trump administration’s Department of Justice filed a brief in support of CSS. Philadelphia Family Pride, a nonprofit for LGBTQ-led families and Support Center for Child Advocates, a legal assistance and social service advocacy group, are intervening parties in the case, represented by the ACLU. Several LGBTQ rights groups have filed amicus briefs in support of Philadelphia.
The Supreme Court, in recent cases, has sided with the religious rights arguments
Observers of the case note that in agreeing to take the case in the first place, the Supreme Court signaled a proclivity toward the religious-rights argument. The court has recently become far more likely to rule in favor of religious rights, including the Masterpiece Cakeshop case and disputes between churches pushing back against COVID-19 restrictions.
The court has also became more conservative in the last four years with the appointments of Neil Gorsuch, Brett Kavanaugh, and Amy Coney Barrett.
There’s another big Supreme Court case with Pennsylvania ties
A Schuylkill County high school student’s profane Snapchat post is the subject of a Supreme Court case related to student free speech and whether schools can punish students for things they say outside of school. The court heard arguments in that case in April.
Staff writer Jeremy Roebuck contributed to this article.