The Supreme Court defied expectations on Thursday, issuing a unanimous — but limited — ruling in favor of a Catholic foster care agency that was targeted by Philadelphia authorities for refusing to consider same-sex couples as adoptive parents.
The Court ruled, 9-0, that “Philadelphia violated the First Amendment when it froze the contract of a Catholic Foster Care Agency that refused to work with same-sex couples as potential foster parents because the agency believes that marriage should be between a man and a woman,” according to CNN.
“The dispute arose because Catholic Social Services — which was receiving taxpayer funds — was unwilling to work with LGBTQ couples as foster parents out of religious objections to same sex marriage. The policy was brought to the attention of the city in 2018 after inquiries from a local newspaper, and soon after the government put a freeze on the contract. The group, led by long-time foster parent Sharonell Fulton who has fostered more than 40 children over 25 years, brought suit,” the outlet noted.
The agency had never been approached by nor turned away a same-sex couple seeking to adopt, per the group’s brief.
“The issue before the court was whether Philadelphia could require foster agencies to comply with its non-discrimination law,” CNN added. The agency argued that it should not be forced to violate its religious principles in order to qualify for government contracts.
In ruling for Catholic Social Services, Chief Justice John Roberts, writing for the court, acknowledged that CSS “seeks only an accommodation that will allow it to continue serving the children of Philadelphia in a manner consistent with its religious beliefs; it does not seek to impose those beliefs on anyone else.”
“The refusal of Philadelphia to contract with CSS for the provision of foster care services unless it agrees to certify same-sex couples as foster parents…violates the First Amendment,” he wrote.
The six justices included in the majority opinion also noted that foster care agencies are not public accommodations.
“Certification as a foster parent…is not readily accessible to the public. It involves a customized and selective assessment that bears little resemblance to staying in a hotel, eating at a restaurant, or riding a bus,” Roberts noted in his opinion, writing for those six justices.
The ruling, however, was limited; although both the agency, Catholic Social Services, and three of the Court’s conservative justices — Justice Samuel Alito, Justice Clarence Thomas, and Justice Neil Gorsuch — wanted the Court to go further, overturn the landmark case, Employment Division, Department of Human Resources of Oregon v. Smith, and allow broad religious exemptions to anti-discrimination laws.
Employment Div. v. Smith is a 1990 decision “that said religious groups are not exempt from general local, state, and federal laws, including those banning discrimination. A decision to overturn that ruling would make it easier for businesses to claim a religious exemption from laws that ban discrimination on the basis of sexual orientation. But civil liberties groups say it would blunt efforts to fight discrimination,” per NBC News.
Thursday’s decision carves out a very specific exemption to anti-discrimination laws, but as Justice Alito noted in his concurring opinion, it is not likely to have a wider impact on First Amendment jurisprudence.
“The Court has emitted a wisp of a decision that leaves religious liberty in a confused and vulnerable state,” Alito said. “Those who count on this Court to stand up for the First Amendment have every right to be disappointed — as am I.”
Experts suggested that, as in previous decisions, Roberts may have stepped in to press “incrementalism” — a slower, more measured approach at changing precedent.
Yes. CJ Roberts stepped in again for incrementalism, and it looks like he persuaded the liberal justices to go along with him to prevent the more conservative justices from overturning Smith.
There will be pages and pages written about this. https://t.co/umc4HUy5jl
— Gabriel Malor (@gabrielmalor) June 17, 2021
The Becket Fund for Religious Liberty hailed the opinion as a “victory for heroic foster moms and for #religiousfreedom.”
In a statement, the group noted that the ruling “ensures that religious groups like Catholic Social Services—who serve kids regardless of their race, religion, sex, or sexual orientation—can continue their great work.”
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