Supreme Court Sides With Catholic Agency Refusing To Work With LGBTQ Foster Parents

A Supreme Court decision on Thursday ruled that Philadelphia violated the First Amendment when it froze funding to Catholic Social Services (CSS). In keeping with its non-discrimination law, the city cut off government funding because CSS declined to work with potential foster parents who identify as LGBTQ. While the ruling is a clear victory for religious liberty, Justice Samuel Alito expressed his dissatisfaction that the ruling did not go far enough toward lasting change, charging that "the Court has emitted a wisp of a decision that leaves religious liberty in a confused and vulnerable state. Those who count on this Court to stand up for the First Amendment have every right to be disappointed -- as am I."

Ariane de Vogue writes that Alito would have preferred the court to go as far as striking down the ruling of the 1990 case Employment Division v. Smith, which said that “if a legal requirement applied equally to everyone, even if it burdened religious practice, it was constitutional as long as the government had a rational basis for the law.”

The religious practice in question is the Catholic Church’s stance against same-sex marriage. The Church is clear in its teaching that marriage should be between one man and one woman. To require CSS to consider LGBTQ couples as possible foster parents, then, would force the agency to act in contradiction with Catholic doctrine. In withdrawing government funding, Philadelphia essentially infringed upon CSS’s First Amendment rights.

Chief Justice John Roberts, in his majority opinion, wrote, “It is plain that the City's actions have burdened CSS's religious exercise by putting it to the choice of curtailing its mission or approving relationships inconsistent with its beliefs.” In accordance with Employment Division v. Smith, Philadelphia could legally do so “as long as [the law] applies equally to everyone,” writes de Vogue.

In her comments to the Court, Lori Windham, however, maintained that the city did not have a rational basis and, in fact, was “trying to coerce [CSS] to make statements that are contrary to its religious beliefs as a condition of continuing to participate in the religious exercise that they have carried out in Philadelphia for two centuries.”

On the other hand, de Vogue notes that the city’s contract with CSS “includes language prohibiting agencies from discriminating on the basis of race, color, religion or natural origin as per the city's Fair Practices Ordinances.” In fact, a federal appeals court had previously sided with the city, ruling that CSS “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."

Diana Cortes, Philadelphia’s City Solicitor, was disappointed by the Supreme Court’s decision, arguing that non-discrimination laws are enacted for the good of all, including foster children. She noted that while the city is appreciative that the Court did not strike down Employment Division v. Smith’s precedent, its ruling may have “disturbing consequences for other government programs and services.” Thus, as CNN Supreme Court analyst Steve Vladeck sums up, “[Thursday’s] decision is another victory for religious groups, but not the major one that they sought.”