An LGBTQ+ rights ruling is on its way from the Supreme Court, most likely in June and possibly as early as Tuesday.
The ruling will come in the case of Fulton v. City of Philadelphia, dealing with whether entities with government contracts have to follow that government’s antidiscrimination laws. The court heard oral arguments in the case in November.
The high court generally tries to issue all its rulings by the end of June, although it sometimes goes past that. The court doesn’t say in advance which decisions it will announce which days, but it has designated Tuesday as an opinion issuance day, meaning the ruling could come out then.
The case arose because the Philadelphia Department of Human Services, which operates the city’s foster care system, quit using Catholic Social Services for certification of foster parents in 2018 when city officials learned the agency would not certify same-sex couples. The agency’s action violated the city’s law against discrimination based on sexual orientation.
Another faith-based agency, Bethany Christian Services, revoked its antigay policy in order to continue working with the city, but Catholic Social Services and three foster parents sued Philadelphia, arguing that the group should be able to continue to provide services to the city while still adhering to religious tenets against same-sex marriage. The city’s action, it contends, violates its First Amendment right to free exercise of religion. The Catholic agency lost in a U.S. district court and a federal appeals court, so it appealed to the Supreme Court.
When hearing the case, some justices on the court, which has a conservative majority, seemed to agree with Catholic Social Services’ viewpoint. “If we are honest about what’s really going on here, it’s not about ensuring that same-sex couples in Philadelphia have the opportunity to be foster parents,” Justice Samuel Alito said. “It’s the fact that the city can’t stand the message that Catholic Social Services and the archdiocese are sending by continuing to adhere to the old-fashioned view about marriage.” Another conservative justice, Brett Kavanaugh, said the city’s stance was “absolutist” and “extreme.” The newest justice, Amy Coney Barrett, also seemed sympathetic to the Catholic group.
But Chief Justice John Roberts, who is usually considered conservative but sometimes sides with liberal justices, appeared understanding of the city’s viewpoint. “This is a case involving free exercise rights, but it’s in tension with another set of rights, those recognized in our decision in Obergefell,” the court’s marriage equality decision, he said. “And whatever you think, or however you think that tension should be resolved as a matter of government regulation, shouldn’t the city get to strike the balance as it wishes when it comes to setting conditions for participating in what is, after all, its foster program?”
The federal government argued in favor of the Catholic group, as Donald Trump was still president when the case was heard. Department of Justice attorney Hashim Mooppan, joined Lori Windham, an attorney representing Catholic Social Services, in arguing that the government’s interest in preventing anti-LGBTQ+ discrimination is somehow less compelling than its interest in preventing racial discrimination.
Neal Katyal, the lawyer representing Philadelphia, told the justices that a broad ruling in favor of the Catholic group’s right to discriminate against same-sex couples while still contracting with the city would enable many other types of discrimination. “Petitioners’ rule would enable [a foster care agency] to exclude parents of any religion — from Buddhist to Baptist — and this court, because it can’t second-guess the reasonableness of a belief, it opens the door to all sorts of claims … and it radiates far beyond foster care,” he said.
It’s anyone’s guess how the court will rule, but some lawyers with LGBTQ+ groups are cautiously optimistic. “There’s a very strong argument that Philadelphia should prevail,” Mary Bonauto, an attorney with GLBTQ Legal Advocates and Defenders, told The Advocate earlier this year (she is not involved in the case). Part of that argument is that it’s not acceptable to violate a contract, and Roberts seemed to pick up on that, she said. Alternatively, she said, the court could craft a very narrow ruling giving Catholic Social Services an exemption from the law without establishing a broad right to discriminate.