Supreme Court to attack religious freedom over LGBTQ rights in foster care case
The Supreme Court delivered nearly all of its landmark LGBTQ rights decisions in June, the pride month, and the High Court is expected to do so again this year with an expected decision soon in Fulton v. City of Philadelphia. The court ruling could have lasting implications for same-sex couples looking to start a family.
In March 2018, Philadelphia terminated its foster care contract with Catholic Social Services (CSS) due to the organization’s policy of not placing children in same-sex couples. The city’s non-discrimination policy guarantees “the full and equal enjoyment of services and facilities without discrimination or segregation” on the basis of gender identity, sexual orientation, race, religion, marital status and a number of other characteristics.
In response, CSS filed a lawsuit, claiming the policy violated its First Amendment right to religious exercise and freedom of expression. Losing in a district court, the agency appealed to the U.S. 3rd Court of Appeals, which unanimously upheld the lower court’s decision in April 2019.
The case then went to the Supreme Court, which heard oral argument in November and is expected to render its decision before the current term ends this month.
Currently, the laws of 11 states allow state-approved fostering and adoption agencies to seek religious exemptions from civil rights laws and reject otherwise qualified LGBTQ expectant parents, according to the Movement. Advancement Project, an LGBTQ think tank. 18 other states have no explicit protection for LGBTQ applicants in the reception and adoption system. In its documents, CSS argues that he has never been approached by a same-sex couple, and if so, he would refer them to one of the 29 other foster care agencies in Philadelphia.
The agency highlights the 2018 Supreme Court ruling in favor of Colorado baker Jack Phillips, who refused to sell a wedding cake to a gay couple because it violated his Christian beliefs about marriage. In a restrictive ruling, Judge Anthony Kennedy determined that Colorado had displayed “hostility” to Phillips’ religious views.
The agency and its supporters believe Philadelphia displays the same hostility.
They also argue that the city routinely circumvents its own anti-discrimination policy when it seeks to place black children in families of color.
“[F]Child care is not public housing or a service to the “public”, wrote James Dwyer, professor at William and Mary Law School and author of “The Relationship Rights of Children,” in the National Review. “Children are not generic goods for sale (like donuts or cups of coffee), to which everyone has an equal right. Instead, when the government makes decisions on behalf of foster children, it is obligated to act only in the best interests of that child.
Dwyer argues that CSS does not prevent prospective LGBTQ parents from being welcomed into the city. It is simply a matter of “reaching out to the immense Catholic population of Philadelphia to recruit and train an impressive number of highly motivated and dedicated foster parents.”
Not surprisingly, LGBTQ rights advocates disagree.
“As long as there are children who need families, we should do everything we can to connect them with loving parents,” said House Member Rep. Sean Patrick Maloney, DN.Y. LGBT Caucus, in a statement. “At the end of the day, this case isn’t about religious freedom – it’s about licensing to discriminate against families like mine. It hurts innocent children and denies them the families and support systems they need. “
In 2019, Maloney, a married homosexual with three children, sponsored the Every Child Deserves a Family Act, which would prohibit child welfare agencies receiving federal assistance from turning down potential families on the basis of religion, sex, sexual orientation, gender identity or marriage. status.
The pending case could force the Supreme Court to reconsider its decision in Employment Division v. Smith, a 1990 case concerning the ban on smoking peyote in Oregon, which some Native Americans consider part of their religious practice.
In a controversial decision, Judge Antonin Scalia ruled that religion does not automatically offer “an exemption from generally applicable law”.
“The rule in favor of respondents would open up the prospect of constitutionally required religious exemptions from civic obligations of almost every kind imaginable – ranging from compulsory military service to paying taxes …
The High Court could return Fulton v. City of Philadelphia in district court to determine whether there was religious animosity, said Currey Cook, senior attorney at Lambda Legal and director of the organization’s Youth in Out-of-Home-Care project. He could also come out strongly in favor of CSS, forcing Philadelphia to change its foster care policies.
But it could rule more broadly that religious organizations can be exempted from anti-discrimination laws, even if they receive public funds.
“A blanket decision could have dire consequences for foster families,” said Stacey Stevenson, CEO of Family Equality, a nonprofit group that advocates for LGBTQ families. “This will limit the number of available homes and hamper placements in kinship. And that could open the door to discrimination on any number of reasons – race, religion, gender – if it’s based on religion. “
Cook said a decision in favor of CSS “would send a message to LGBTQ youth that they are second-class citizens.”
“These LGBTQ youth in the care of an agency that excludes same-sex couples would inevitably receive the damaging message that the agency responsible for their well-being views them as inappropriate as parents and unequal as citizens,” wrote Lambda Legal in an amicus brief.
There are more than 420,000 children in the foster care system, according to the Children and Families Administration.
Same-sex couples are seven times more likely to foster and adopt children than heterosexual couples, Stevenson said, and they are also more likely to adopt harder-to-place children, such as those with needs. special or older.
According to CSS, the problem is not too few families but not enough agencies.
“We need to have a diverse group of agencies to meet the needs of diverse families,” Lori Windham, senior counsel at Becket, the law firm representing the agency, told NBC News previously. “The closure of Catholic services will not improve the crisis of foster families. “
With three Trump-nominated people on the bench – Neil Gorsuch, Brett Kavanaugh and Amy Coney Barrett – the court is now leaning to the right. But Cook said it’s not an automatic indicator of how well he will govern.
“Yes, the fact that this is a much more conservative tribunal and allows religious accommodations where possible should give us pause,” he said. “But this case calls into question the government’s very ability to contract and opens a box of worms about how businesses operate that could worry even conservative judges.”
In 2020, Gorsuch issued the majority opinion in Bostock v. Clayton County, Georgia, who determined that employment discrimination against people on the basis of their sexual orientation and gender identity amounted to sex discrimination.
Barrett, a Catholic and a member of the charismatic People of Praise Christian community, was not on the pitch when he heard from Bostock. It could make all the difference, Cook said.
“She comes from a penchant for accommodating religion, so it remains to be seen how she will weigh.”
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