Can a City Refuse To Use a Foster Agency That Discriminates Against Same-Sex Couples?

The Supreme Court is about to tackle the issue.


Can governments refuse to use religious foster and adoption agencies that won't place children with same-sex couples? The issue will soon come before the Supreme Court.

This morning the Supreme Court announced that it would hear Fulton v. City of Philadelphia. The case centers around how Philadelphia applies its antidiscrimination policies to Catholic Social Services (CSS), with whom the city contracts for a number of child welfare programs. CSS objects to same-sex marriages for religious reasons and declines to put children with such couples.

This puts it at odds with Philadelphia's antidiscrimination ordinances, and so the city stopped referring children to the group for foster care placement. CSS and some foster parents it represents filed suit in 2018, arguing that the group is exercising its religious rights by declining to accept gay couples as caretakers. They want their contract reinstated.

The city resisted, arguing that religious exemptions don't apply here because the antidiscrimination laws are being neutrally enforced and aren't based on any sort of anti-Catholic animosity. So far the courts have agreed with the city.

Conflicts like this are playing out in several cities and states across the country. Some places, such as Philadelphia, are refusing to let adoption or foster care agencies discriminate against gay couples. But some states, such as Tennessee and Michigan, have passed laws to let private agencies turn away potential parents whose religious beliefs don't match theirs (not just on same-sex issues).

The most important Supreme Court precedent here may be 1990's Employment Division v. Smith. That case, about two men fired from their jobs and denied unemployment for using peyote, held that people can't use their freedom of religious expression to demand exemption from neutrally applied laws that satisfy a "compelling government interest." (Traditional libertarian disclaimer: In a libertarian universe, stopping people from taking hallucinogenic mushrooms would fail the "compelling government interest" test. But that's not the current universe.)

This Supreme Court challenge explicitly argues that the Employment Division v. Smith precedent should be revisited. If there's a remote chance of that happening, we'll see a lot of public worrying about whether the conservatives of the Supreme Court will enshrine what folks like the American Civil Liberties Union call a "license to discriminate."

I'm skeptical that the court would rule that broadly, but we'll see. When the Supreme Court addressed whether a Colorado bakery could refuse to provide a wedding cake for a same-sex couple in Masterpiece Cakeshop v. Colorado Civil Rights Commission, the court elegantly sidestepped the thorny central question of when exemptions should be allowed by determining that Colorado was not neutrally applying its antidiscrimination laws and that there was clear evidence of anti-religious bias in how the bakery was treated.

Philadelphia insists that that's not the case here. The city notes in its brief to the Supreme Court that it is continuing to contract with CSS in other areas. Thus, it's only keeping the group from participating in the foster care program and only because it is violating the city's antidiscrimination rules.

The justices could simply rule that Philadelphia is indeed neutrally applying the law. If that's all they do, they won't overturn the laws passed in those other states that do offer exemptions to agencies that don't want to place kids with same-sex couples.

For a useful libertarian perspective on this conflict, I recommend Walter Olson, a Cato Institute senior fellow, Reason contributor, and gay man in a same-sex relationship who has adopted a son. Taking a broad view, Olson notes that children and adults in the adoption and foster care system benefit when there is a wide "marketplace" where qualifying agencies aren't shut out of the system when it's not necessary. If the goal is to help connect more children with families to care for them, shutting out religious agencies doesn't necessarily help achieve that goal, even if those agencies are discriminating. What matters is the existence of meaningful alternative options; there are downsides when religious groups are denied participation, and downsides when religious organizations are the only choices in an area. Olson offers his argument here. SCOTUSblog has a page devoted to Fulton v. City of Philadelphia here.

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  1. Eh, this is a tough one. Seems like everyone here has a choice.

    1. Except the poor kids. Get 'em all adopted by parents who won't abuse them, asap. Who cares about anyone else in this scenario?

      1. Kind of my point. I find the Cato argument compelling. Just have as many certified agencies as possible to get the kids out of foster care. But on the question of religious freedom vis-a-vis government contracts... you pays your money you takes your choices.

        1. Well the problem is that while most of us don't want the government involved, the government is already involved simply because orphan children end up in their laps. The question then becomes is the government allowed to refuse help from adoption agencies that discriminate in some way?

          Frankly, it's a hard question to answer. Private adoption agencies should be able to apply its own set of criteria for adoptive parents. Heck, just specifying two parents is discriminatory all on its own.

          Legally I think Philadelphia has the right to impose such standards across the board. Morally I think it's best that children get loving parents, regardless of the the gender mix of the parents. It's better than being stuck in a foster system. Religiously I'm going to side with CSS, but it's not my right to decide as I'm not involved in what should be a private decision. CSS is till free to run their agencies as they see fit, they just don't get this narrow slice of contracts.

          In an ideal world the CSS would still be getting these contracts, but the city imposing some uniform standards on adoption agencies is NOT the end of the world.

        2. I'm not sure. But maybe it's because I don't understand the underlying facts yet. As I read the story, Philadelphia was outsourcing this particular child-welfare program to Catholic Social Services. The inference was that the CSS policy effectively blocked same-sex couples from adopting.

          A different interpretation, though, is that CSS was one among many providers of this program. In that scenario, the Cato argument makes more sense. Same-sex couples still wouldn't be able to adopt through CSS but they could go to other agencies - and more choices is generally better than fewer.

          Do you have any data on which Philadelphia CSS relationship applied? Was it a one-to-one or a one-to-many?

          1. It's the second. They were one of a variety of providers.

            And after they didn't get their contract renewed, other providers stepped up. So "more choices" was preserved. Just, you know, without the blatant discrimination and putting religious values ahead of the welfare of children.

            1. I guess if you ignore the government discrimination, then yeah, without blatant discrimination.

        3. Actually, research has pointed to stability being more important than parents--and I think it's in France that somebody started around a century plus ago an orphanage that is pretty much run by the kids themselves, and they tend to view themselves as family. We are talking 'settle down as adults nearby so you can visit your sibs' levels of considering themselves family, and apparently they do pretty well overall.

          Honestly, I think here the problem is that there are seriously good historical reasons to allow some discrimination. Many countries governments--including the US one--have used the foster care system to shift minority kids out of their cultures. (This has not necessarily even been intentional, the US has tended to have it just be a product of inbuilt systemic stupidity.) In fact, Federal law in the US pretty much says Native American children should be placed with their tribe if at all possible.

          Which might cause some interesting problems here...since legally, you are required to discriminate in at least one situation, and there's a (very justifiable) push to try to make a cultural match for foster and adoption placements. Aside from the whole awkward racist history of not doing that, it would help minimize the harm caused by the inherit instability.

      2. That is a complete fallacy. It assumes that this is the only agency the city can deal with. And that is just not true. The city can and does use as many agencies as it can. Saying they can discriminate against religious agencies reduces the potential for adoption by reducing the number of agencies available for use. The plaintiffs are not demanding the city stop using agencies that adopt out kids. It is only asking that it have a chance to do so as well.

        CATO's argument is dishonest as hell. I honestly don't think CATO is capable of making an honest argument anymore. If it is, I haven't seen it.

        1. CATO’s argument is dishonest as hell.

          Did you somehow not just make the same argument?

          1. No I didn't. Can you at least try to understand what is going on? Just a little.

            1. John:
              The city can and does use as many agencies as it can. Saying they can discriminate against religious agencies reduces the potential for adoption by reducing the number of agencies available for use.

              Taking a broad view, Olson notes that children and adults in the adoption and foster care system benefit when there is a wide "marketplace" where qualifying agencies aren't shut out of the system when it's not necessary. If the goal is to help connect more children with families to care for them, shutting out religious agencies doesn't necessarily help achieve that goal, even if those agencies are discriminating.

              1. I stand corrected. They did make an honest argument. I read it the opposite. Cato making an honest argument is almost miraculous. What an amazing development. Thanks.

                1. Admitting you're wrong is 40% of the battle. Hoping no one notices is the other 60%

                  1. Too late.

        2. The catholics have no right no adopt out children. If all children are being adopted out now while not violating the city's policies, then why should the catholics have any say?

          On the other hand, if all children are not being adopted out as quickly as they can be, then why should the city keep children in foster care instead of letting the catholics adopt them out?

  2. I wonder how many people will base their attitude on this on how many more kids would be adopted or fostered? If the average kid spends a year in foster care before being adopted, and gay adoptive parents would reduce this to six months, or three months, or one month, would that change people's attitudes? Homophobes might insist that being stuck in foster care until 18 is better than having gay adoptive parents at age 5.

    Popcorn time.

    1. My question is this: Why do gay couples get to be spared the drama and difficulties of adopting a troubled teenager?

    2. Yes, you disagree with the plaintiffs in this case. Why you think that is relevant is a mystery known only to you. Who gives a shit what you think of these people's policies and beliefs? That has zero relevance to the question of whether they have the right to hold them and if the city has a right to discriminate against them because of it.

      1. "It's only discrimination when it's against MY side."

        The catholics are the ones discriminating, John. Do you need the paradox of tolerance explained to you? Because this situation is an exact inverse of that.

        1. Being the government, and claiming the right to enforce your will with guns is supposed to mean giving a wide berth and allowing people living under that government to hold many different kinds of views and letting the best ones rise on their merits. It's not that what CSS is doing isn't 'discrimination' in some sense, it's that when the government discriminates, it's heinous in a way it's not when private organizations do it. Remember, jim crow laws were LAWS.

        2. The difference here is that the plaintiffs are discriminating legally. The question in the case is whether the city’s discrimination is legal.

      2. Yes, you disagree with the plaintiffs in this case.

        Where the hell did you get that from?

        Go on John, make up more straw men. You're not very good at it. You need more practice.

    3. Funny that, I wad thinking the same arguement from the other side. Why should the government deny children a speedy healthy adoption just because they don't like the religious beliefs of the agency doing the work. The more groups the city works with, the more kids get adopted into healthy homes. Refusing to deal with these groups serves zero benefits to the children.

      Or to put it in other words, the government not only lacks a compelling interest in refusing to use these groups, the government in fact has a compelling interest on behalf of the children to use as many avenues of healthy happy placement as possible.

      1. This objection only makes sense if you think that the city didn't find other agencies to contract with after Catholic Charities disqualified themselves.

        But they did find other agencies. Agencies that, unlike Catholic Charities, didn't intend to discriminate against citizens of Philadelphia.

    4. Kids are very homophobic.

      They want mommies and daddies.

      They want mommy to be mommy, and daddy to be daddy.

      Unless they were removed from a same sex couple and have grown up with two daddies or mommies or some fluid gender situation.

      Kids are very conformist. it's why they blurt out uncomfortable truths all the time--'That man smells funny.", "She has a big thing on her face.", and the ever popular, 'You're so fat."

      Things are the way they are to them and anything different can be commented on.

      We cannot just focus on time, we have to focus on what's best for the child.

  3. Is that Carlos Maza in that picture?

  4. The government has to serve and deal with all comers consistent with the equal protection clause. That means they have to treat everyone equally. It doesn't mean they have to treat everyone the same. They can discriminate as long as the policy is rationally related to a legitimate government interest and they are not discriminating against a protected class (race, religion, or sex) in which case the burden of proof is higher.

    In this case, the city is discriminating against a protected class. These adoption agencies won't adopt to same sex couples because of their religious objection to homosexuality. So, the answer is or should be No.

    The only way it is a yes is if you declare homosexuality to be a protected class under the 14th Amendment. Then it becomes a toss of which protected class the court likes more. For example, if the city said it wouldn't deal with agencies that discriminated on the basis of race, the complaining agencies would almost certainly lose since race has trumped freedom of religion as a protected class in most cases.

    Understand what the core issue is here. It is whether the court is going to declare homosexuals a protected class. If they are not a protected class, then this case isn't close. The agencies have a right to the free exercise of their religious views and the city has no right to discriminate against them because of that exercise.

    If the homosexuals are a protected class, then being a practicing Christian, Jew, or Muslim who follows their religious doctrine on homosexuality as it has been understood for over a thousand years in each case is now as effectively illegal as being a practicing racial separatist. Yeah, sure you can believe whatever you want. But if you try to act on those beliefs, you will not be allowed to do business with the government or enter the common market.

    1. You do realize that catholic adoption agencies don't only adopt to catholics, right? Catholic parents-to-be are not the injured party here.

      This is about an adoption agency having a policy that is counter to the city's policy against discrimination. That they put "catholic" in their name does not change the facts of the matter.

      I would argue that catholic orgs have no place around children now, anyway. The world's oldest and best organized pedo ring should not be tolerated by polite society.

      1. This is also about government promoting a specific religious dogma (same sex couples are morally equivalent to opposite sex couples as parents) above all others and declaring an opposing one anathema. The government is not being religiously neutral.

        1. This is also about government promoting a specific religious dogma (religion is neutral when considering prospective parents) above all others and declaring an opposing one anathema. The government is not being religious neutral.


          You realize that Catholic Charities in the state was already having to ignore the religion of prospective parents, yes?

        2. "or prohibiting the free exercise thereof..."

      2. The world’s oldest best organized pedo ring
        Public schools? The DNC? Little League?
        The Catholics pale next to those three.

    2. [...] being a practicing Christian, Jew, or Muslim who follows their religious doctrine on homosexuality as it has been understood for over a thousand years in each case is now as effectively illegal [...]

      The Bible has a lot more to say about how you're supposed to treat women and heathens then gay folk, but Christians have managed to cherry pick around those bits well enough.

      I suspect they'll surmount this challenge too.

      1. Do tell.
        Perhaps a quote from the New Testament about how you’re supposed to treat women and heathens will back up your assertion.

        1. ... are you seriously trying to rebuke my statement about Christian comfort with cherry-picking the Bible by cherry-picking away from the Old Testament?

          That's hilarious.

          And don't try the "fulfilled the law" bit with me, y'all are super-inconsistent on that, and can't agree among yourselves what that actually means.

          But hey, don't take it from me. There are plenty of Christians who claim the Bible commands women to be subsurvient, obedient, and meek to men. And many other Christians who say it doesn't command that.

          And of course we have how much history in Europe of Christians waging literal war on Christians because they didn't worship quite right? Nevermind what they did to heathens in the Americas and Africa.

          I mean, for crying out loud, remember what Moses did when he came down from the mount? Broke the tablets and ordered his followers to commit mass-murder, and then had to go ask God for a do-over.

          Cherry-picking is a time-honored tradition. To pretend offense like this is hilarious.

        2. Ephesians 5:
          Verse 25 - Husbands, love your wives, just as Christ loved the church and gave Himself for her.
          Verses 28.29 - In the same way, husbands are to love their wives as their own bodies. He who loves his wife loves himself. For no one ever hates his own flesh but provides and cares for it, just as Christ does for the church

          1. Isn't Ephesians the one that includes "Slaves, obey your masters"?

            First time I saw a Christian group sue to take down a bible verse.

  5. The constitution says that there can’t be an establishment of religion. It we allow religious groups to exempt themselves from laws that everyone else has to play by, the we are giving them special privileges. That is establishment of religion. I believe it should be narrow exemptions, such as it is ok for at church to only hire members of their own religion to be priests. But should we be required to fund religious adoption agencies that exclude blacks, or atheists? If a group wants to discriminate, they can do it on their own dime.

    1. That is just complete fucking nonsense. By your logic passing a law that said everyone had to swear alliance to Satan and eat pork every day would not violate the religious freedom of Jews and Muslims because we can't exempt religious groups from the laws that apply to everyone else.

      You have it exactly backwards. Free exercise means that you can't pass laws to force people to do things that are against their religion. They get a pass. If you don't like that, then don't pass the law in the first place.

      1. No, of course not. Your examples would be the government forcing people to actively violate their religion, which would be wrong. The case in question is the government bring required to fund discrimination.

        1. Ah sorry, you can't hold a job at the post office unless you say hail satan and eat pork everyday. Just like this law it serves no government interest as it artificially limits who can do the work, but no one has the right to a job at the post office.

          1. A more apt analogy would be a law that said you couldn't work at the post office if you refused to deliver mail to gay people.

        2. “or prohibiting the free exercise thereof…”

          You guys always seem to gloss over the last bit.

          1. Last time I checked, receiving state contracts to adopt kids to exclusively heterosexual households wasn't part of the "free exercise" of any religion.

            And even if someone wanted to make the claim that it was, it would be an absurd claim on it's face: if your religion requires state contracts, it's not a religion, it's a scam.

  6. A Catholic organization doesn't want the gays to adopt kids, one has to wonder if it's because the Catholics want to keep all the little boys to themselves. Those priests aren't gonna diddle each other after all.

    1. If they don't want gays to adopt them, doesn't that necessarily mean they don't want priests to adopt them? In fairness, if anyone knows the dangers to kids here, it would be the Catholic Church. They are as you point out a bit of experts in this subject.

    2. You do realize that the Catholic Church does not endorse priests sexually abusing children? No more than the public school system endorses teachers having sex with their students.

      1. And the public school system has a far deeper and systemic problem with that than the Catholic Church does.

      2. So, this was supposed to just be a joke, but if we want to talk about it, the reason why the Catholic Church gets such a bad rap compared to teachers or coaches messing with their kids, or even other religious leaders belonging to Protestant, Jewish, or Islamic sects, is that the Catholic Church has historically given what's essentially a support network to these folks and strove to cover for them in order to protect the "sanctity of the church".

        There was a case back in late 2018 if memory serves correctly, involving decades of offenses, with church leaders all the way up to Archbishops, involved in covering up for problematic priests, silencing witnesses and moving known offenders around to new communities.

    3. Don't cut yourself on all that edge, "darkflame".

      A far higher percentage of public school teachers, prog politicians, little league coaches and journalists have been arrested for child molestation than priests, but you and your fedora tipping compatriots never seemed too worried about them.

      1. it was a joke, not a dick. Don't take it so hard.

  7. In a libertarian universe

    Is that D.C. or Marvel?

    1. Image.

    2. And how long before Disney owns it?

  8. Seems like a pretty easy win for the state, freedom of association and whatnot.

    You don't have a right to government contracts. Just like when I'm entering into a contractual relationship, I should get to base that decision on whatever criteria I like, so does the state. In the state's case, if that's "we'll only do this if you're cool with gay people", that's their prerogative.

    If the people don't like the state's criteria for contract issuance, they can elect different people to change the criteria.

    1. We can get Planned Parenthood off the government teat then?

    2. Freedom of association is a right. The government doesn't have rights, so the only group that can claim freedom of association here is the private adoption agency.

    3. We have also gone from the "government cannot legislate morality" to "of course the government can legislate morality in favor of homosexuals".

      1. Where did they legislate? There's no force involved here, no one is forcing the Catholic agency to accept gay couples.

        Which right is the state violating here? You don't have a right to government contracts.

        1. They legislated in making the law.

          In many cases, if the state prohibits an adoption agency from contracting with the state, then the adoption agency is prohibited from performing adoptions in that state. That would be force.

          Given that there is evidence that children do better with male and female parental role models, mandating that an adoption agency not exercise its judgement would be a violation of rights to conscience.

          Also, the government cannot dictate dogma.

          1. "In many cases, if the state prohibits an adoption agency from contracting with the state, then the adoption agency is prohibited from performing adoptions in that state. That would be force."

            If that is actually what occurred here, then yes the state overstepped.

            If all they've done is say that they won't do business with that agency, no force has been used.

            The government is not dictating any dogma here. The Catholics are still free to practice their religion and believe whatever they'd like to believe, the only thing they're being deprived of is government checks.

          2. In many cases, if the state prohibits an adoption agency from contracting with the state, then the adoption agency is prohibited from performing adoptions in that state. That would be force.

            Yeah, no.

            Christian/Jewish/whatever private adoption agencies that work to keep kids in "the community" have a nice long history. They are no more "forced" to give up their beliefs by not getting state contracts then Catholic Charities is "forced"to give up their beliefs by not getting state contracts.

  9. Great more discriminators discriminating against discriminators.

  10. I love it when conservatives confuse Freedom of Religion and Entitlement to State Contract.

    Fact is, as we've seen over and over, when Catholic Charities leaves a state because it doesn't want to abide by the state's non-discrimination law, other charities step in to fill the gap. There is no loss of services from Catholic Charities leaving, only a loss of services that discriminate.

  11. Finding the BEST family to adopt a child includes discriminating between all the choices.

    Considering that same sex couples can never form a biological family, their lifestyle choice precludes it, they begin the discrimination process with at least one strike against them.

    They may be the best option for the child if all others are worse. A child without competent loving parents is already a tragedy.

    1. The issue isn't with any giving agency having different standards for what is or isn't a "strike against them".

      It's categorical denial.

  12. Can a city ignore federal detainer notices?
    Can a city ignore the second amendment?
    Can a city ignore the fourth amendment?
    Can a city ignore the fifth amendment?
    Can a city ignore John Galt?

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  15. I don't think any of you understand how any of this works.

    With the exception of infants--who ALWAYsS find homes(unless they're extreme special needs cases that require things most homes can't provide)--placing foster kids is HARD. To cut out an agency because they don't support same sex couples adopting is to cut off families who could help kids who need foster homes NOW.

    If you're gay, and want to adopt, there are places you can go. There's nothing stopping you.

    For YOU to stop kids from getting into a foster home because the agency that can house them won't allow you to adopt is to hurt a child NOW.

    But I will say that I suspect that this has less to do with gay people who want to become parents and more to do with cities that passed 'woke' one-size-fits-all laws and are determined to enforce them no matter who gets hurt. Kinda like the original bathroom laws.

  16. Just because it's okay to discriminate based on sexual orientation, I hope that there are adoption agencies who are un-willing to abide by Supreme Court decision to allow discrimination.

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