Supreme Court

Supreme Court Hears Arguments Over Whether Religious Agencies Can Reject Gay Foster Parents

New Justice Amy Coney Barrett expresses concerns about wider implications of antidiscrimination policies.

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The Supreme Court this morning spent two hours debating whether the city of Philadelphia can decline to contract with a Catholic organization to place foster children with families if that organization holds religious objections to allowing same-sex couples to participate.

The complicated case pits the general application of discrimination laws against the boundaries of religious liberty. Based on the lines of questioning today, it's not entirely clear where the Court's justices will fall.

The case, Fulton v. Philadelphia, revolves around Catholic Social Services (CSS), which contracts with the city to provide a number of child welfare services. Because of religious objections to same-sex marriage recognition, it does not want to screen or certify gay couples as potential foster families and does not place children with them. This violates Philadelphia's anti-discrimination laws, and in 2018, the city stopped contracting CSS for this service, though to this date apparently no gay couples have actually come to CSS looking to foster kids.

CSS and foster parents connected to CSS have sued for discrimination, claiming that they are exercising their right to religious expression and demanding that Philadelphia restore the contract. The City of Philadelphia argues that this is not a case of religious discrimination—the rules are being applied neutrally and without animosity toward CSS's religious beliefs. The city's lawyers point out that CSS is still getting $26 million in annual funding from Philadelphia for the child services they provide. They've only cut off the placement contract.

The questioning today probed many different areas about the business relationship between CSS and Philadelphia. Several justices (including newly seated Justice Amy Coney Barrett) questioned whether CSS was a contractor with the city (giving the city more power to set guidelines) or a licensed private partner who provided a service to the city.

That may seem like a strange place to take the discussion, but the reason became clear in Barrett's line of questioning toward Neal Katyal, the attorney for Philadelphia. The city controls who is permitted to participate in this process of certifying foster parents, which led Barrett to hypothesize a situation where the government takes control of all hospitals but then contracts out with private parties to operate the hospitals. Could the state then say, "You can get exemptions from some medical procedures, but every hospital must perform abortions?"

Katyal's response was that a government takeover of all hospitals would raise any number of constitutional issues and couldn't really address the hypothetical. He did attempt to reject the characterization of a city-run foster parent monopoly by arguing that this case involves only those children who are wards of the state. For those children, the government has a compelling interest in establishing and enforcing neutral guidelines about who qualifies as appropriate parents, including same-sex couples.

Much was made of the fact that CSS's refusal to accommodate same-sex couples does not actually stop these couples from becoming foster parents. CSS is just one of 30 agencies working with foster children in Philadelphia and nobody could find any examples of same-sex parents in Philadelphia being unable to actually become foster parents.

But the city's attorneys argued that if Philadelphia allowed CSS to cite religious belief for an exemption from its anti-discrimination law, then there could potentially be a domino effect of religious organizations seeking exemptions to discriminate for a whole host of reasons, including the possibility that they'd turn away couples of different faiths. The justices and the lawyers all seemed to agree that the Supreme Court would reject any attempt to use religion as an excuse to deny adoption opportunities to interracial couples. But now the court must contend with real religious conflicts raised by recent Supreme Court decisions mandating same-sex marriage recognition and forbidding workplace discrimination against gay and trans people, and several justices noted back in those rulings this conflict was coming. How do these sincerely held religious convictions intersect with government contract rules?

Justices Samuel Alito and Brett Kavanaugh were both most vocally on CSS's side. Alito said this dispute stems from Philadelphia not being able to "stand the message that the Archdiocese and CSS are sending" by not wanting to work with same-sex couples. Kavanaugh accused the city of "looking for a fight" and failing to consider a balance between religious rights and same-sex marriage rights with the way they're enforcing the anti-discrimination law. Katyal resisted this characterization, noting that they had won in the lower courts and that the attorneys representing CSS are forcing the fight.

Toward the end of oral arguments, Justice Sonia Sotomayor asked attorney Jeff Fisher, who was representing nonprofits who agree with the city's position, if there was a possible compromise here—a strong suggestion the justices really don't want to establish a big precedent, given the complicated nature of this case and foster care and the different policies that come into play when screening parents versus matching children to homes. Fisher noted that the city was not asking the CSS to endorse same-sex marriage when it certifies that a same-sex couple meets the city's standards for becoming foster parents and can include a disclaimer as such.

Lori Windham, representing CSS and foster parent Sharonell Fulton on behalf of the Becket Fund for Religious Liberty, is pushing the Supreme Court to reconsider the 1990 precedent Employment Division v. Smith, which held that the government is generally not violating a person's free exercise clause by enforcing laws as long as such laws are neutrally applied.

While the Smith decision, written by Justice Antonin Scalia, was discussed throughout today's hearing, there didn't really seem to be a lot of interest in going so far as to reverse the ruling. It is, however, clear that several justices, including Barrett, are concerned that this case could end up having wider implications for religious liberty regardless of which way they rule. That suggests the possibility of a very specific, narrow ruling and not some new precedent.

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  1. If they reject gay couples, would that make them a publisher or a platform for adoption?

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  2. If we are talking hall of justice and not court of law, the city should be prohibited from contracting out services in all cases because the officials were elected to run the damn place directly.
    Further, there is no reason why any Church needs a license from any government to provide services to those who willingly accept them.

    1. This case ONLY involves services for children who are wards of the state, it does not touch on overall government authority to license.

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    2. Arguably, the city officials were not elected to run these services. Historically, orphanages and foster care were delivered by the church and other non-profits long before the state ever considered getting involved. That’s what makes the city’s non-response to Barrett’s hypothetical so problematic. The government did seize control over all foster operations. Yet they apparently saw no great “number of constitutional issues” that needed to be overcome for that reality.

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  4. “a Catholic organization to place foster children with families ”

    “it does not want to screen or certify gay couples as potential foster families and does not place children with them”

    “Fisher noted that the city was not asking the CSS to endorse same-sex marriage when it certifies that a same-sex couple meets the city’s standards for becoming foster parents and can include a disclaimer as such.”

    This last quote seems disingenuous with respect to the first two characterizations. Is CSS merely interviewing and certifying potential couples? In which case this seems a trivial argument. Or is CSS assigned a child, and then that child is precluded from being placed with a same sex couple? That latter example would seem to unncessarily restrict the options for the child.

    But if there are 30 (?!) agencies at play, then assigning a child to any single agency is going to necessarily constrain the pool of potential parents in unknowable ways. So why get bent out of shape about one particular restriction?

    1. I can totally see the SCOTUS issuing a narrow ruling. Yeah, I get that there are “big issues” of religious freedom at theoretical stake, but the specifics of this case seem like a bad case for sorting those out.

      1. This same fight has happened in several other cities. In some cases, CSS is the only contractor which means same-sex couples are entirely excluded.

    2. The way it works in my state, from what I remember back when we were thinking of adopting, is that the contract agencies recruit, train, and certify potential foster parents. As kids become available for placement, the social workers contact the agencies who then submit potential parents who they think would be a good fit for the child. The SW is the one who makes the decision about which parent(s) they think would be best.

      IOW – if the SW thinks a child should be placed with a same sex couple, they will look at those couples submitted by other agencies. This is one of those sneaky anti-religious regulations that end up hurting kids at the expense of virtue signaling.

    3. I don’t believe the kids are “assigned” exclusively to a single agency, it is more like a real estate listing service where multiple agencies can try to achieve a match.

  5. The government is *supposed* to come down on the children’s side. Here, Philadelphia is coming down on the woke social justice side.

    Children would almost certainly rather have homophobes for parents than no parents. Everybody hates something. Everybody is biased. Is the next step to forbid folks who dislike the government’s decision here? And next people who just plain dislike government?

    1. ACB to determine if sodomites are aligned with Satan and if dykes sink in water, like witches and wizards.

    2. “people who just plain dislike government”

      So, I would never be allowed to adopt or foster any kids for fear that I’d pass on my views to them. But it would be fine for statist foster/adoptive parents to pass on their naive trust in government. Yeah, that sounds totally fair.

    3. Foster parents are NOT parents. They provide foster care to children who will eventually either be returned to parent(s), be adopted, or reach the age of majority.

      Since there are ample opportunities for a same-sex couple to foster children through other organizations, CSS is not denying anyone their rights.

    4. This is a bit of a strawman sliding down a slippery slope holding a red herring, yes?

      The issue isn’t that CSS is only providing “homophobes” as foster parents. We don’t know the beliefs of the foster parents but we do know CSS will place people with any religious background (or no religion at all). So I presume the LGBT perspectives of the foster parents generally follow the general public in the local area.

      The issue is that the city is contracting for services and those services are specified and one of those specification is that they cannot discriminate based on the local criteria, which in this case includes sexual orientation. CSS has the option to accept the contract, negotiate a different contract, or take a pass. They decided instead to sue for the right to set the terms of the contract themselves. Notice in the discussion the court all agreed that they wouldn’t allow a similar claim if the discrimination was based on race. So, apparently, the religious freedom of white power churches (see: World Church of the Creator as an example) isn’t as important as the Catholic Church’s?

      This is a libertarian blog and people seem more concerned about religious anti-discrimination law than the core issue which is a contract dispute.

      1. Fuck religion. Goddamn bane of humanity.

        Eloi, Eloi? How much longer must we suffer thee?

  6. Democrats are corrupt lying sacks of dog shit.

    1. Biden’s a crook.

  7. The rights in question are the rights of the children. If they have a right to be raised by Adam and Steve, then it’s too bad (if the post is correct) that there haven’t been a bunch of gay foster parents offering themselves.

    Or maybe the child can be raised by Bob and Carol and Ted and Alice?

    1. Don’t worry, they would never place a child with an openly polyamorous family.

    2. If children have a right to a stable home with two parents then artificially reducing the couples that qualify is harmful to the children who might have found a home but did not.

  8. I do not see why the agency should have to vet gays if they choose not too.

    I also do not see why the city should have to contract with a company that will not.

    1. I also do not see why the city should have to contract with a company that will not.

      Because that amounts to religious discrimination.

      What I don’t understand is why the Catholic church is so adamant about this, however. Yes, homosexuality is a sin. So are extramarital sex, gluttony, and pride. Are they only going to foster with couples who are demonstrably sin-free? How would they determine that?

      1. They’re not discriminating because of religion.

        They’re saying that this is the requirement – and you don’t want to fulfill that requirement. It doesn’t matter *why* you don’t want to.

        If we weren’t so intent on forcing the religious to do what we want in every other sphere of life then this wouldn’t be contentious.

        1. They’re saying that this is the requirement – and you don’t want to fulfill that requirement. It doesn’t matter *why* you don’t want to.

          Since we use disparate impact as the standard for racial discrimination, we ought to use it as the standard for religious discrimination.

          This rule clearly has disparate impact on religious organizations. It likely was created to discriminate for that very purpose; there is no other obvious justification for it. Hence we should assume that it constitutes religious discrimination.

          Either drop disparate impact as a criterion or apply it consistently.

          1. There is a very obvious justification for it: 1) it violates the city’s own anti-discrimination laws. 2) it artificially restricts the number of qualified couples who are available to foster wards of the state.

            It has a disparage impact on the children who need homes to deny qualified same-sex couples the same access to government services as opposite-sex couples because it reduces the number of available couples overall.

      2. Are they only going to foster with couples who are demonstrably sin-free? How would they determine that?

        Repentance. Sin is forgiven if confessed and forsaken. I would assume that Catholics would not foster with unmarried sexual partners in any case, but a couple who had sex prior to marriage who later married and displayed proper contrition for their prior transgressions would qualify. The issue is that as long as homosexuality is a sin, the marriage of a same-sex couple will be used as the evidence that they are not repentant and do not qualify.

        1. The issue is that as long as homosexuality is a sin, the marriage of a same-sex couple will be used as the evidence that they are not repentant and do not qualify.

          That would be an argument if CSS only placed children with heterosexual Catholic couples who regularly go to confession. But they don’t. So “evidence of unrepentant sin” is obviously not their reason, a special Catholic hangup with homosexuality is.

          These are children who need a good, stable home; a gay couple can provide that, better than many straight couples. It is callous and un-Christian for the Catholic church deny children such a home. But then that’s what the Catholic church is: callous and nasty.

        2. Also, not being Christian is a sin. The first commandment. If you’re Catholic, being divorced and remarried is considered adultery and that’s a big no-no too.

  9. If everyone agrees that it would be fine to restrict funding if they banned interracial couples for religious reasons, what’s the difference! Other than conservatives haven’t been dragged into modernity on the gay issue quite yet?

    1. We feel gay people have the right to think and believe as they wish. You do not.

      Not sure why every group must be in lockstep with you. I mean, you’re a moron who voted for an imbecile.

      1. They don’t and they aren’t. I’m just asking why they don’t have the religious liberty to discriminate against interracial couples but would be able to discriminate against gay couples.

    2. Tony can even make being gay about race. He truly has a gift.

      1. It’s from the article talking about what happened in the argument.

        1. I apologize. The point was conceded in the article so it didn’t register. So good of you to throw it back out for discussion.

  10. If the progs on the court could get 5 votes they would dump any precedent and go as far as those 5 votes could take them — the conservatives should also.

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  12. Does the Catholic agency dominate the foster parent market? Does it participate in anti-competitive practices such as children dumping, price fixing, or exclusive dealing? Do they actively make sure gay couples have *no* opportunity to adopt children or foster them? If not, why are we having this conversation.

    1. CSS provides these services in cities and towns of all sizes. In some of them, they are the only provider. So to whether they participate in denying service to all same-sex couples in an area, yes, in some they do.

      And, again, this is for children who are wards of the state only. So the government is more than just a licensing body here; they are legally obligated to see to the welfare of these children. For other children looking for homes, as stated in the article, CSS is still active as a private service and this court case isn’t touching on that situation.

      1. No point in explaining reality to adherents. They believe in the supernatural and can’t cope with the fact they’re going to the dirt when they die. Facts are inconvenient and perceived as hate speech.

        Believers should be roundly mocked for their child-like gullibility and sheep-like obedience. Shunning these character defects seems to be working for gen z. In the meantime, engaging believers vis a vis their religion is no different than trying to get a TDS sufferer to explain why Orange man bad.

  13. This hurts my brain:
    ” … 1990 precedent Employment Division v. Smith, which held that the government is generally not violating a person’s free exercise clause by enforcing laws as long as such laws are neutrally applied….”

    “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof;”

    Your religion prohibits you from doing X
    We require you to do X
    How is that in any way at all NOT “prohibiting the free exercise thereof?”

    “Oh, EVERYONE is required to do X, so the requirement is neutrally applied.”

    But the Constitutionalists lost that battle long ago. Maybe someday the Church will realize that homosexuality is no more offensive to God than miscegenation, and the point will become moot.

    1. Druids are (hypothetically/historically) obligated by their faith to conduct human sacrifice under a full moon.
      The government says this is not permitted.
      This is “prohibiting the free exercise thereof.”

      There are similar examples in the First Amendment — yelling “fire” in a crowded theater.
      For the Second Amendment – not all “arms” may be legally owned, like weapons of mass destruction.

      As a general concept, we have long accepted that where two rights collide that the result will be a compromise of one or both of those rights.

      What happens if my religion prohibits me from paying taxes? Or respecting property rights? What if my religion requires that I kill heathens?

  14. i think it must be the choice of any mans and he or she must possess complete right over it

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