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What the Supreme Court Ruling on Foster Care Means for LGBTQ+ Parents

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LGBTQ+ advocates are relieved the court didn't establish a broad right to discriminate, but some call the decision troubling.

Thursday's Supreme Court ruling in Fulton v. City of Philadelphia was a narrowly worded one, based strictly on language in Philadelphia's contract with a Catholic foster care agency, and does not establish a broad religious exemption from antidiscrimination laws.

But the ruling, which held that Catholic Social Services can still work for the city even if it won't certify same-sex couples as foster parents, points up the need to pass sweeping LGBTQ-inclusive antidiscrimination legislation, activists say.

Philadelphia had ended its contract with Catholic Social Services because the agency's policy against same-sex couples violated the city's civil rights ordinance, which forbids discrimination based on sexual orientation. But the contract permitted exceptions from the nondiscrimination requirement, and it was on this basis that the Supreme Court unanimously ruled in favor of Catholic Social Services, overturning decisions by a trial court and an appeals court in the lawsuit brought by the agency and several foster parents.

"The City has burdened CSS's religious exercise through policies that do not satisfy the threshold requirement of being neutral and generally applicable," reads the opinion, written by Chief Justice John Roberts. Therefore Philadelphia violated the social service agency's First Amendment rights, the court held.

The ruling doesn't mean same-sex couples or LGBTQ+ individuals can't become foster parents in Philadelphia; the city contracts with other agencies that don't discriminate. One, Bethany Christian Services, even revoked its anti-LGBTQ+ policy so it could continue to work for the city. It also doesn't mean governments elsewhere can't make contractors comply with antidiscrimination laws, as long as the contact doesn't include an exception clause like Philadelphia's.

Justice Samuel Alito, one of the court's most conservative members, wrote an opinion concurring with his fellow justices but expressed a desire for a broader exemption for faith-based groups.

"Today's decision will be of no help in other cases involving the exclusion of faith-based foster care and adoption agencies unless by some chance the relevant laws contain the same glitch as the Philadelphia contractual provision on which the majority's decision hangs," Alito wrote. "The decision will be even less significant in all the other important religious liberty cases that are bubbling up."

He called for the court to reconsider the precedent set in the 1990 ruling Employment Division, Department of Human Resources of Oregon v. Smith, which held that laws affecting certain religious practices do not violate the right to free exercise of religion as long as the laws are neutral, generally applicable, and not motivated by animus to religion.

He then went into a long discussion of religious freedom cases and offered this conclusion: "After receiving more than 2,500 pages of briefing and after more than a half-year of post-argument cogitation, the Court has emitted a wisp of a decision that leaves religious liberty in a confused and vulnerable state. Those who count on this Court to stand up for the First Amendment have every right to be disappointed -- as am I."

Alito and fellow conservative Justice Clarence Thomas also joined a concurring opinion written by Justice Neil Gorsuch, who likewise expressed a desire for the high court to revisit the Smith decision and rule more broadly for religious exemptions. Alito and Thomas, by the way, have said they'd like to see the court's marriage equality ruling overturned as well.

LGBTQ+ rights group's reaction to the Philadelphia decision was one of relief that it didn't go further, plus a call to go on fighting for equality.

"We are relieved that the court did not recognize a license to discriminate based on religious beliefs," Leslie Cooper, deputy director of the American Civil Liberties Union's LGBTQ & HIV Project, said in a press release. "Opponents of LGBTQ equality have been seeking to undo hard-won nondiscrimination protections by asking the court to establish a constitutional right to opt out of such laws when discrimination is motivated by religious beliefs. This is the second time in four years that the court has declined to do so. This is good news for LGBTQ people and for everyone who depends on the protections of nondiscrimination laws."

"The decision will not affect any foster care programs that do not have the same system for individualized exemptions that were at issue here," Cooper continued. "This is good news for the more than 400,000 children in foster care across the country, who are the ones who get hurt the most if placement decisions are made based on an agency's religious beliefs rather than the child's best interest. And this decision does not allow discrimination in other taxpayer-funded government programs such as homeless shelters, disaster relief programs and health care." Federal, state, and local governments can and should continue to pass and enforce comprehensive nondiscrimination laws. This is critical given the high rates of discrimination experienced by the LGBTQ community, particularly Black and Brown trans women."

"The second time in four years" refers to the Masterpiece Cakeshop case, in which the court ruled in 2017 that the Colorado Civil Rights Commission did not take Masterpiece owner Jack Phillips's religious beliefs into sufficient consideration when deciding he violated state nondiscrimination law by refusing to make a wedding cake for a same-sex couple. That decision vacated the commission's action against Phillips, but it did not establish a broad right to discriminate based on religious objections. (Phillips is in the news again now, having been fined for refusing to make a cake celebrating a transgender woman's transition.)

The Philadelphia decision is similar, Cooper stressed in a follow-up call with The Advocate. "What's important is that this decision is extremely narrow. ... It did not establish a constitutional right to discriminate," she said. The ACLU, which intervened in the case on the side of the city, had been worried the ruling might be much broader, she noted. As is stands, governments at all levels can continue to enact and enforce LGBTQ-inclusive civil rights laws, she said. But why the Supreme Court reversed the lower court's decisions is anyone's guess, she added.

Other reactions:

"Properly understood, today's decision is a significant victory for LGBTQ people," said Shannon Minter, legal director of the National Center for Lesbian Rights. "The Court ruled in favor of Catholic Social Services, but on the narrowest possible ground, based on language in the City of Philadelphia's contract that authorized individualized exemptions for any provider. The Court did not change the current constitutional framework, which permits governments to enforce antidiscrimination laws that prohibit discrimination against LGBTQ people even when doing so may have a disparate burden on those who hold certain religious beliefs. As a result of today's decision, those who feared the Court might create a sweeping new religious exemption to such laws can breathe a sigh of relief."

"Today's ruling by the Supreme Court is troubling but, importantly, it refused to give a free pass to people or agencies that want to discriminate against LGBTQ people for religious reasons and is limited to the specifics of Philadelphia's foster care system. Instead, the Court validated the City's 'weighty' interest in the equal treatment of LGBTQ prospective foster parents and foster children," said M. Currey Cook, counsel and Youth in Out-of-Home Care project director at Lambda Legal "The only reason those interests did not carry the day was due to the specifics of the City's contract. Because the Court decided the case on contract-specific grounds, the City can address the situation by rewriting its contracts. ...

"To get to today's result, the Court prioritized the interests of the religious agency over the City's commitment to equal and professionally appropriate treatment of the children in its care. Some of the language in the decision is worrying because it fails to appreciate how deciding the case in this manner will result in harm to the children in Philadelphia's care. However, this is a case in which no evidence was presented about same-sex couples who had applied to CSS and then been turned away or about children who had been denied equal treatment and respect based on an LGBTQ identity. When confronted with such facts in a future case, the Court will have to grapple for the first time with the ways such discrimination harms the foster children whose needs and best interests must always be paramount in child welfare cases."

"While the Court found in favor of Catholic Social Services on an unusual feature of Philadelphia's contract for services, today's decision is narrow, and does not create a broad free exercise exemption from nondiscrimination laws," said Mary Bonauto, civil rights project director at GLBTQ Legal Advocates and Defenders. "Our nondiscrimination laws are in place to ensure equal protection and access for everyone, including in vital taxpayer-funded social services like foster care, homeless shelters and food pantries. As the Court said, this is a 'weighty interest,' including with regard to protections for LGBTQ people. Here the Court found only that Philadelphia's 'inclusion of a formal system of entirely discretionary exceptions' made the contract's nondiscrimination provision unenforceable as to CSS. CSS's desire to deny screening to same-sex couples is a disheartening reminder of the discrimination LGBTQ adults and young people still face even within a system charged with protecting vulnerable youth and families. We are encouraged by the many faith-based social services agencies who would rather serve everyone than exclude some. Congress also has an opportunity to act on this shared value and the wishes of the overwhelming majority of Americans, by passing the Equality Act to ensure clear and explicit protections from discrimination for LGBTQ people in vital social services and every area of life."

"While today may have been a loss for the City of Philadelphia, it was a victory for the principle that nondiscrimination protections that our families depend upon are valid and enforceable when properly implemented," said Family Equality's CEO, Stacey Stevenson. "Today's decision once again affirms that state and local governments can maintain laws that protect everyone -- including LGBTQ+ youth, families, and prospective parents -- from discrimination in government services."

"The Court's decision is yet another reminder of the importance of legislation like the John Lewis Every Child Deserves a Family Act and the Equality Act," said Family Equality Chief Policy Officer Shelbi Day. "We urgently need more local, state, and nationwide nondiscrimination protections to ensure that the more than 400,000 youth in foster care have the best possible chance of finding safe, affirming homes."

"The Center is deeply disappointed by today's decision by the United States Supreme Court," said a statement from the Los Angeles LGBT Center. "On its surface, this case was about whether a private foster care agency can use their religious beliefs to justify excluding LGBTQ+ people from its publicly-funded services. But on a deeper level, the Court has reaffirmed a pattern that is all too familiar to our community: there is an asterisk on the legal and ethical notion that 'all people are created equal' that excludes millions of LGBTQ people. While the justices attempted to uphold the dignity of LGBTQ people in the process, those sentiments ring hollow, especially when they fail to acknowledge that the very foster parents who pass legal muster -- given the Court's decision -- may ultimately cause further harm to LGBTQ foster youth."

"Today we found out that the US Supreme Court voted unanimously that Catholic adoption agencies can ban LGBT people from adopting and still be entitled to public funding!" said activist Robin Tyler. "This means that the 'liberal' justices voted with the conservatives. So, 'religious rights' supercede LGBT civil rights. The hypocrisy of this decision is that the Catholic Church has had to defend itself against thousands (probably many more)of cases of child sexual abuse, NOT OUR COMMUNITY. And yet, the ENTIRE Supreme Court voted AGAINST US and FOR the Catholic Church! Beware. THIS IS THE CANARY IN THE COAL MINE. (Which means a prediction of upholding 'religious bigotry,' under the faux name of 'religious freedom,' the freedom to discriminate' against us.) Don't hold your breath that The Equality Act is going to become law. As long as there is the filibuster and conservative Democratic senators, it is not going to pass, not now, not ever. So, what should we do? We should not allow this horrific ruling without taking to the streets, again and again and again. Trust me, marriage equality is on the line. And we still do not have the right to work in the majority of states. HRC and the Task Firce are not going to do anything except issue press releases. This is the BEGINNING of eroding what few rights we have. Armchair activism by shouting on the Internet is not going to work. Anger, Rage, Activism, Street Protests work. The only thing 'Over the Rainbow' is what we build. They are not going to 'give' us anything. Get out there before it is too late. Oh yes, there is a name for this struggle. It's called PRIDE."

Despite the limited scope of the decision, those on the religious right were celebrating it, including the Becket Fund, a legal group that represented Catholic Social Services and the foster parents. "It's a beautiful day when the highest court in the land protects foster moms and the 200-year-old religious ministry that supports them," said Lori Windham, the senior counsel at Becket who argued the case in Fulton. "Taking care of children, especially children who have been neglected and abused is a universal value that spans all ideological divides. Today, I am grateful that the Supreme Court protected heroes of the foster care system like Sharonell [Fulton, the named plaintiff] and Toni [Simms-Busch], who give of themselves daily to care for children in need."

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