Court Rules Against Antigay License to Discriminate in Foster Care

Couple with child

The city of Philadelphia doesn’t have to contract with a foster care agency that discriminates against LGBTQ people, a federal appeals court ruled today.

The Philadelphia Department of Human Services last year ended its contract with Catholic Social Services after the agency refused to change its policy to comply with Philadelphia’s LGBTQ-inclusive antidiscrimination law. The Catholic group will not place children with LGBTQ parents.

The Catholic agency sued, and last year a federal district court ruled that the city was within its rights to exclude organizations that discriminate. Today a three-judge panel of the U.S. Court of Appeals for the Third Circuit upheld that decision, saying among other things that the Catholic group’s religious beliefs do not exempt it from the city’s antidiscrimination law, the Philadelphia Daily News reports.

“The City’s non-discrimination policy is a neutral, generally applicable law, and the religious views of CSS do not entitle it to an exception from that policy. ... [CSS] has failed to make a persuasive showing that the City targeted it for its religious beliefs, or is motivated by ill will against its religion, rather than sincere opposition to discrimination on the basis of sexual orientation,” Judge Thomas L. Ambro wrote for the panel.

The Becket Fund, a conservative legal group that represents Catholic Social Services, is reviewing whether to appeal the Third Circuit’s decision to the Supreme Court. However, the high court last year denied the Catholic group’s emergency petition to have its contract reinstated.

Catholic Social Services has argued that by ending its contract, the city is losing a substantial pool of foster parents. But the city has pointed out that it contracts with 29 other agencies for child placement, and that in 2017, CSS was responsible for only 2 percent of placements.

“This ruling is devastating to the hundreds of foster children who have been waiting for a family and to the dozens of parents working with Catholic Social Services who have been waiting to foster a child,” Lori Windham, senior counsel at Becket, said in a prepared statement. “We’re disappointed that the court decided to let the city place politics above the needs of kids and the rights of parents, but we will continue this fight.”

But Philadelphia Mayor Jim Kenney issued a statement of praise, saying,“I am grateful for the Court’s careful analysis of the case and its thoughtful decision. Our policy ensures that same-sex couples do not face discrimination as they seek to offer loving homes to Philadelphia children in need of foster care. At the same time, the policy safeguards religious liberties. We are proud that Philadelphia is a welcoming, inclusive city that values the diversity of its residents. This policy is the embodiment of those values, and we are pleased that the court has now upheld it.”

Praise also came from the American Civil Liberties Union, representing two groups that intervened in the case – the Support Center for Child Advocates and Philadelphia Family Pride.

“Religious liberty is one of our most fundamental freedoms, and it protects all of us from government interference in whether, when, and how we practice our faith,” said Leslie Cooper, deputy director of the ACLU’s LGBT & HIV Project.

“It does not entitle taxpayer-funded child welfare agencies to impose their own religious eligibility criteria on important government programs. The city of Philadelphia recognizes the need to maximize the number of families available for children in foster care and has every right to insist that the agencies it hires accept all qualified families. Nothing in the Constitution puts the religious beliefs of these agencies ahead of the needs of the children in their care.”

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