On November 4, 2020, the United States Supreme Court heard oral arguments in the case of Fulton v. City of Philadelphia. This case has significant implications regarding diversity and inclusion: it is expected to have consequences not only for same-sex foster parenting and adoption but also for an array of forms of aid and assistance accessible to LGBTQ+ individuals and members of other vulnerable groups. If the Supreme Court were to rule that government-funded agencies have a right to discriminate based on their religious beliefs, it would be at the discretion of private agencies to decide whether or not to allow same-sex couples to become foster parents or to adopt a child. Furthermore, the ruling would open the option for private agencies to make additional determinations regarding whether or not they would offer any services to particular categories of people, regardless of what the law is in the city or the state in which the agency is headquartered and operates. As stated by the American Civil Liberties Union, the case “could allow private agencies that receive taxpayer-funding to provide government services — such as foster care providers, food banks, homeless shelters, and more — to deny services to people who are LGBTQ, Jewish, Muslim, or Mormon.”
The case began in 2018 after the city of Philadelphia’s Department of Human Services investigated two of its foster care provider agents for potential violations of the city’s anti-discrimination laws. The investigation was prompted by a reporter from the Philadelphia Inquirer who claimed that two agencies with renewable one-year contracts with the city, Catholic Social Services and Bethany Christian Services, would not work with same-sex couples that were looking to foster children. When Catholic Social Services and Bethany Christian Services confirmed their unwillingness to certify same-sex couples as foster parents, the city stopped referring foster children to these agencies and instituted an intake freeze. The city’s anti-discrimination laws, which were referenced in the contract that the two agencies had signed, specified that agencies would be prohibited from discriminating based on race, skin color, religion, or nation of origin. Furthermore, the city’s Fair Practices Ordinance prohibits sexual orientation discrimination in employment; public accommodations, including the delivery of city services; and facilities used by the public. Subsequently, Bethany Christian Services agreed to comply with the city’s anti-discrimination mandates, but Catholic Social Services filed suit in the United States District Court for the Eastern District of Pennsylvania, claiming that Philadelphia violated the agency’s First Amendment rights as well as its rights under Pennsylvania’s Religious Freedom Protection Act. Sharonell Fulton, Cecilia Paul, and Toni Lynn Simms-Busch, former foster parents with Catholic Social Services, were also listed as plaintiffs.
In the district court suit, Catholic Social Services sought preliminary injunctive relief, which if granted would have required the city of Philadelphia to renew its contract with the agency while also allowing the agency to refuse same-sex couples that wanted to become foster parents. Catholic Social Services argued that the contract with the city of Philadelphia permitted the agency to consider an applicant’s existing family relationships during the certification process. The agency claimed that, upon considering family relationships, it certified only single parents and heterosexual married couples to foster children. The agency stated that it did not certify unmarried couples living together to foster children and that it considered same-sex couples to be equal in status to cohabitating unmarried couples. Therefore, Catholic Social Services did not recognize the validity of same-sex couples’ marriages and viewed all same-sex couples as being unmarried. The agency further claimed that it could not allow same-sex couple applicants to be certified as foster parents and to become caretakers for foster children because of its religious views and its affiliation with the Catholic Church. Catholic Social Services also declared that it had never received requests for certification as foster parents from same-sex couples, but that it would have directed such couples to other agencies if it had.
The district court denied the agency’s request for a preliminary injunction, stating that the services provided by Catholic Social Services are public accommodations within the meaning of the Fair Practices Ordinance and that the city’s anti-discrimination laws incorporated into the services contracts are neutral, of general applicability, and subject to rational basis review. The district court stated that the city of Philadelphia and its Department of Human Services have a legitimate interest in ensuring that when they employ contractors to provide governmental services, the services are accessible to all those who are qualified. The district court also affirmed that, in the context of foster care and adoption, the city and its Department of Human Services “have a legitimate interest in ensuring that the pool of foster parents and resource caregivers is as diverse and broad as the children in need of foster parents and resource caregivers.” Following the decision by the district court, Catholic Social Services pursued further legal action. The agency sought injunctive relief from the United States Court of Appeals for the Third Circuit, but the motion was denied. Upholding the district court’s decision, the Court of Appeals argued that Philadelphia’s non-discrimination policy was “a neutral, generally applicable law,” and that the religious views of Catholic Social Services “do not entitle it to an exception from that policy.” The Court of Appeals also stated that Catholic Social Services “has failed to make a persuasive showing that the City targeted it for its religious beliefs, or is motivated by ill will against its religion, rather than sincere opposition to discrimination on the basis of sexual orientation.”
The case has reached the Supreme Court of the United States two times. In 2018, the plaintiffs filed an emergency application to the Supreme Court for an injunction pending appeal or an immediate grant of certiorari. Justice Samuel Alito referred the application to the full court, where it was denied. However, in 2020 the Court agreed to take up the case, and a decision is expected in 2021. The day after the 2020 election, while the votes were still in the process of being counted, legal arguments were taking place at the Supreme Court in Fulton v. City of Philadelphia. Several questions have been raised in regards to the case. A key question is if the plaintiff will claim that the government has denied to them what it allows to others holding differnt religious views; or will Fulton claim that the is the law is not neutral and generally applicable, meaning the state government has unlawfully denied their right to freely exercise their religion. A related question is whether the Supreme Court will agree to reconsider its decision made in Employment Division v. Smith in 1990 that citing religious beliefs does not provide an exemption from general laws applying to everyone. While conservatives claim that this decision unconstitutionally restricts freedoms, civil rights advocates consider it a critical precedent for fighting discrimination.
In a brief filed by the former Trump administration’s Department of Justice in support of Catholic Social Services, Solicitor General Noel Francisco stated that “the United States has a substantial interest in the preservation of the free exercise of religion. It also has a substantial interest in the enforcement of rules prohibiting discrimination by government contractors.” Even if the presidential administration has changed, conservative Justices now hold a majority of seats on the Supreme Court, which will likely affect the ultimate decision on the ruling. There are many localities that contract through private agencies to provide services for the public and that have non-discrimination policies similar to that of the city of Philadelphia. If the Supreme Court reverses the rulings of both the district court and the Third Circuit, such localities would have to allow agencies to opt-out of contractual requirements based on religious beliefs. If the Supreme Court rules in favor of Fulton, religious entities will become constitutionally entitled to contract with the government while also being able to refuse to comply with parts of the contract that they object to based on religious exemptions. The foster care system already has a shortage of housing available for foster children, so allowing agencies to opt-out based on religious exemptions would only further exacerbate this problem. Furthermore, the ruling would severely impede the rights of same-sex couples who frequently encounter discriminatory practices based on religious freedom claims in regards to foster care, adoption, and other types of social services. Finally, as noted by ACLU, the ruling would have the potential to impede on the rights of additional minority groups. The implications of Fulton v. City of Philadelphia may extend beyond the consequences for same-sex couples and can set a precedent that will impact many marginalized groups.