August 19, 2020 at 3:52 pm EDT | by Chris Johnson
Supreme Court sets Nov. 4 to hear if Catholic agency can reject LGBTQ parents
The Supreme Court has set Nov. 4 to hear whether a foster care agency can reject parents for being LGBTQ. (Washington Blade file photo by Michael Key)

The U.S. Supreme Court has set Nov. 4 as the date when it will hear oral arguments on whether a taxpayer-funded, religious-affiliated foster care agency can lawfully reject same-sex couples — a case that could have significant impact on policies and laws prohibiting discrimination across the board.

The court on Wednesday designated the Nov. 4 date for the hearing on the docket for the litigation, Fulton v. City of Philadelphia, which was filed by Becket Law on behalf of Catholic Social Services. Justices had agreed to take up the case in February.

The case came about after the City of Philadelphia learned in March 2018 that Catholic Social Services, which the city had hired to provide foster care services to children in child welfare, were refusing to license same-sex couples despite signing a contract prohibiting agencies from engaging in anti-LGBTQ discrimination.

When the city said it would terminate the contract, Catholic Social Services sued on the basis it can maintain the contract and refuse placement into LGBTQ homes for religious reasons under the guarantee of free exercise of religion under the First Amendment.

Because the case is based on First Amendment claims, a decision in favor of Catholic Social Services, if granted on those grounds, may have implications on non-discrimination polices and laws across the board — whether at the local, state or federal level — based not just on sexual orientation and transgender status, but also race, religion, national origin, sex and any other protected characteristic.

That means religiously affiliated agencies could legally refuse placing children into Black families or families of a minority religion. It’s not just foster care; civil rights laws for employment, housing and health care would also be compromised. Although the Supreme Court ruled in favor of LGBTQ rights in Bostock v. Clayton County, a decision in favor of Catholic Social Services would undermine that in the name of religious freedom.

The case history hasn’t been favorable to Catholic Social Services. A federal judge in Pennsylvania and the U.S. Third Circuit Court of Appeals denied a preliminary injunction in favor of Catholic Social Services. The Third Circuit, which declined to revisit the case “en banc” before the full court, based its decision in part on the 1990 ruling in Employment Division v. Smith.

But in the aftermath of President Trump restructuring the Supreme Court with the appointments of U.S. Associate Justices Neil Gorsuch and Brett Kavanaugh, there’s no telling how the court might rule.

Although the Supreme Court had rejected injunctive relief to the foster care agency in response to an emergency request, Gorsuch as well as U.S. Associate Justices Samuel Alito and Clarence Thomas signaled they would have ruled for Catholic Social Services — before any briefing had even taken place in case.

The Trump administration, in the form of a legal brief in June from former U.S. Solicitor General Noel Francisco, argued before the Supreme Court the City of Philadelphia “impermissibly discriminated against religious exercise” by requiring Catholic Social Services to abide by its contract.

However, the Justice Department brief heavily relies on the Supreme Court decision in the Masterpiece Cakeshop case, which was a narrow ruling in favor of a Colorado baker who refused to make a cake for a same-sex couple, in an apparent attempt to link the issues to Catholic Social Services in Philadelphia and avoid a wide-ranging ruling applicable to other scenarios that may compromise the U.S. government’s authority in making contracts.

Acting Solicitor General Jeffrey Wall has made a formal appeal before the Supreme Court for time for the U.S. government to participate in oral arguments. Although justices haven’t yet responded to the request, they’re likely to allow the acting solicitor general to participate given the federal implications of the case.

Philadelphia City Solicitor Marcel Pratt, in a brief before the Supreme Court signed by her and other attorneys, argues the city “acted within broad scope of its managerial authority” by requiring Catholic Social Services to abide by its non-discrimination rules.

“[Catholic Social Services] may resume certifying foster parents for the City at any time,” the brief says. “The City “strong[ly] desire[s]” that it will do so. But the Constitution does not entitle CSS to perform those services on the City’s behalf, with City funds, pursuant to a City contract, in a manner that the City has determined would be harmful to its residents and the thousands of children it has a duty to protect.”

Becket Law, in its brief filed in May before the Supreme Court, maintained the City of Philadelphia targeted the foster care agency in violation of the First Amendment “under any standard,” but takes pains to make the case the city didn’t take the right administrative procedure before cutting off Catholic Social Services.

“In its rush to penalize this religious exercise, the City failed to figure out whether CSS actually violated any law, much less a neutral, generally applicable one,” the brief says. “Instead of a law, Philadelphia had a preferred outcome: the Archdiocese of Philadelphia should get with the times, accept that it is ‘not 100 years ago,’ and start endorsing same-sex relationships for foster care.”

The American Civil Liberties Union, which has intervened in the case, argues in a brief filed last week the City of Philadelphia’s contract applies to “all contractors, both religious or secular,” therefore should survive judicial review even under a higher level of scrutiny.

“The requirement imposes no substantial burden on CSS,” the brief says. “It does not require CSS to endorse any same-sex marriages, but merely to certify that families meet Pennsylvania’s statutory criteria.”

The Supreme Court announced the date for oral arguments on the same day the House Ways & Means Committee issued a report on the waiver the Trump administration gave to South Carolina from non-discrimination rules on federal funding. The request was based on Miracle Hill Ministries seeking to place children consistent with its religious beliefs.

The committee report, titled “Children at Risk: The Trump Administration’s Waiver of Foster Care Non-Discrimination Requirements,” found the Department of Health & Human Services permitted discrimination within the child welfare system based on religion and sexual orientation and failed to recognize its negative impact on LGBTQ families. Further, the report found the Trump administration didn’t consult policy experts on the decision and instead relied on political appointees.

CORRECTION: An earlier version of this article incorrectly characterized Catholic Social Services as an adoption agency. The Blade regrets the error.

Chris Johnson is Chief Political & White House Reporter for the Washington Blade. Johnson is a member of the White House Correspondents' Association. Follow Chris

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