The Trump administration has filed a brief in a Supreme Court case in favor of allowing adoption and foster care agencies to discriminate against same-sex couples, even if they receive taxpayer funds.
The friend-of-the-court brief comes in Fulton v. City of Philadelphia. The Philadelphia Department of Human Services in 2018 ended its contract with Catholic Social Services for adoption and foster care placement, as its discriminatory practices violated the city’s civil rights ordinance. The Catholic agency sued, but a trial court and a federal appeals court have both ruled that the city was within its rights to enforce the ordinance in this manner.
The Supreme Court announced in February that it would hear Catholic Social Services’ appeal. The Catholic group claims that by ending the contract, the city is violating its constitutional right to free exercise of religion.
The U.S. Department of Justice agrees. In its friend-of-the-court brief — such briefs are filed by parties that are not directly involved in the case but want to offer an opinion — it notes that Catholic Social Services will not approve child placements with unmarried couples, and because of its religious beliefs, it considers all same-sex couples unmarried. It will place children with single people, including those who are gay or lesbian, the brief says, but it will not recognize a same-sex relationship. It will refer unmarried couples elsewhere.
The city’s policy shows hostility to religion, according to the Justice Department’s brief, filed this week by Solicitor General Noel Francisco. The brief contends that Philadelphia will allow exemptions from the antidiscrimination ordinance for secular reasons — such as an adoption agency’s preference for parents of a certain race — but not those that are religiously motivated.
“Denying an exception here produces the very outcome that Philadelphia ostensibly seeks to avoid — it excludes foster families affiliated with Catholic Social Services not because of the best interests of the child, but because of the City’s disagreement with this religious organization’s view of same-sex marriage,” the brief reads.
The brief further cites the Masterpiece Cakeshop case as a precedent the court should consider. “This Court’s cases establish that strict scrutiny … is appropriate if governmental action is tainted by ‘hostility’ to religion,” it says. In that case, a Colorado baker refused to create a custom wedding cake for a same-sex couple, with the baker saying his religious beliefs prevented him from doing so. The Colorado Civil Rights Commission found the baker had violated the state’s antidiscrimination law, but the Supreme Court vacated that decision because, the majority of justices said, the commission had not shown sufficient respect for his beliefs.
The American Civil Liberties Union, which has intervened in the case on the side of the city, issued a statement denouncing the Justice Department’s position. “The Trump administration submitted a brief to the Supreme Court on the side of a taxpayer-funded agency that is seeking a constitutional right to turn away people who fail to meet the agency’s religious criteria,” said Leslie Cooper, deputy director of the ACLU’s LGBT and HIV Project. “While this case involves rejecting LGBTQ families, if the Court accepts the claims made in this case, not only will this hurt children in foster care by reducing the number of families to care for them, but anyone who depends on a wide range of government services will be at risk of discrimination based on their sexual orientation, religion or any other characteristic that fails a provider’s religious litmus test.
“Our government provides critical social services to people in need, including through partnerships with private secular and religious organizations. Discrimination has no place there. We look forward to responding to these claims on August 13 when we file our response.”
Wednesday was the deadline for friend-of-the-court briefs to be filed in support of Catholic Social Services; those in support of the city must be filed by August 20.
Other groups and individuals that have filed briefs in support of the Catholic group include Concerned Women for America; the Foundation for Moral Law (Alabama homophobe Roy Moore’s organization); the Americans for Prosperity Foundation (the Koch brothers’ group); the states of Texas, Alabama, Arizona, Arkansas, Kentucky, Louisiana, Missouri, Nebraska, Ohio, Oklahoma, and West Virginia; former U.S. Attorney General Ed Meese (from the Reagan administration); the Church of Jesus Christ of Latter-Day Saints; several Catholic and other religious organizations; the National Association of Evangelicals; and 44 members of the U.S. House and Senate.
Those signing on to the House and Senate brief include such notoriously anti-LGBTQ+ legislators as Ted Cruz, Lindsey Graham, Marsha Blackburn, Louie Gohmert, Glenn Grothman, Vicky Hartzler, and Steve King.
The high court will hear the case during its next term, which begins in October.