Supreme Court Decision Does Not Create a License to Discriminate

The Supreme Court today ruled in Fulton v. City of Philadelphia that city officials’ decision not to renew Catholic Social Services’ foster care contract was impermissible because the city’s contract contained a mechanism for offering individual discretionary exemptions to agencies, which the court held that the city could not refuse to extend to CSS. The court did not, however, establish a general right for religious organizations to violate non-discrimination laws.

The decision comes in a case involving Catholic Social Services, a taxpayer-funded foster care agency that will not accept same-sex couples in violation of the city’s non-discrimination requirement. CSS sued the city, claiming a constitutional right to discriminate against qualified same-sex parent families because CSS has a religious objection to accepting such families.   

The Supreme Court did not accept CSS’ argument that the Constitution bars the government from enforcing non-discrimination requirements against those with religious objections to complying. In fact, the court recognized that the city’s interest in enforcing nondiscrimination protections for same-sex couples was “a weighty one.” And it did not accept CSS’ invitation to overhaul the court’s longstanding free exercise jurisprudence. However, the court held that the city’s decision to end CSS’ foster care contract was unconstitutional because the contract itself was not generally applicable, where it contained a mechanism for discretionary exemptions from its terms.    

“We are relieved that the court did not recognize a license to discriminate based on religious beliefs,” said Leslie Cooper, deputy director of the ACLU LGBTQ & HIV Project. “Opponents of LGBTQ equality have been seeking to undo hard-won non-discrimination 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 non-discrimination 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.”

“For the families in Philadelphia Family Pride, this case is first and foremost about kids. We work with the City of Philadelphia, private agencies that work with children in our foster care system and LGBTQ parents,” said Stephanie Haynes, executive director of Philadelphia Family Pride. “We are relieved that this decision only applies to this specific contract, and hopeful that Philadelphia will be able to address the constitutional concerns the court identified. LGBTQ people are just as qualified to be foster parents as anyone else. There is no reason our families should be turned away from fostering children. In states across the country, many children spend years in a group home before being placed with a foster family, if ever.”

More than 1,000 people and organizations joined friend-of-the-court briefs supporting Philadelphia, including all of the major child welfare groups, clergy and religious organizations representing diverse religious communities, former foster youth, and nearly half of the states and dozens of cities and mayors.

“Congress must now listen to an overwhelming majority of voters and pass the Equality Act to update our civil rights laws to ensure explicit protections from discrimination based on sexual orientation and gender identity, including in federally-funded programs,” said James Esseks, director of the ACLU LGBTQ & HIV Project. “Even with last year’s historic decision recognizing that our federal laws against sex discrimination protect LGBTQ people from discrimination, there are still significant gaps in our federal nondiscrimination laws. In addition to ensuring explicit protections for LGBTQ people, the Equality Act would update our federal civil rights laws to address gaps in the law by providing protection for all women, people of color, and LGBTQ people in areas such as transportation services, retail stores, and taxpayer-funded programs.”

The Supreme Court’s decision is here: https://www.aclu.org/legal-document/fulton-v-city-philadelphia-supreme-court-decision 

More details about this case are here: https://www.aclu.org/cases/fulton-v-city-philadelphia