Gay Catholic Foster Care Case Stupid, Bad Until You Consider What Supreme Court MIGHT Have Done!

On Thursday, the Supreme Court unanimously ruled in favor of a Catholic agency that discriminates against LGBTQ people.

But the thing is ... it could have been a lot worse.

Fulton v. City of Philadelphia is about whether Philly has to continue working with Catholic Social Services to place children in foster homes, even though CSS discriminates against LGBTQ foster parents. Pretty much everyone expected CSS to walk away with a win — and a lot of us were afraid that SCOTUS would use this case to obliterate civil rights laws. Catholic Social Services did win its case, but the ruling was thankfully very narrow.

And, in Roberts Court 2021, that's a win.

The Background

Philadelphia works with a bunch of private foster care agencies to find homes for foster children. For a long time, CSS was one of those agencies — but it refuses to place children with unmarried couples or same-sex married couples, because it wouldn't be a religious organization if it didn't also engage in some discrimination.

Philadelphia has an inclusive non-discrimination ordinance, and in 2018 told CSS that it would only continue to contract with it if it stopped discriminating against same-sex married couples. CSS said that discrimination is an important part of its mission and religion requires it to discriminate.

I was terrified that our 6-3 fascist conservative Supreme Court was going to use this case as an opportunity to strike down non-discrimination ordinances — or, at least, make them toothless. The Court had kind of punted on that issue in Masterpiece Cakeshop, where it ruled in favor of the Cake Nazi, but on pretty narrow grounds. SCOTUS said it was ruling for the bigoted baker because it didn't like the way the Colorado Civil Rights Commission handled the case and the government should be nicer to people who just want to legally discriminate against the gays. Notably, it didn't rule that it was unconstitutional to make hateful "Christians" follow non-discrimination laws.

Like Masterpiece Cakeshop, Fulton v. Philly was written to narrowly apply to the facts of the specific case in front of the Court. CSS wanted the Court to overrule decades-old precedent. SCOTUS not only refused to do that, it also wrote an opinion clearly meant to apply only to the facts in front of it.

In 1990, the Supreme Court ruled in Employment Division v. Smith that states aren't required to accommodate religious beliefs within "neutral laws of general applicability." Specifically, it ruled that the state could deny unemployment to a member of the Native American Church who had consumed peyote as part of their religious ceremonies. The opinion had a whole bunch of problems and eventually led to the passing of the Religious Freedom Restoration Act in 1993 — which, at the time, was championed by civil rights groups like the ACLU.

There are probably more than five votes on the current Supreme Court to overrule Smith. Alito, Thomas, Gorsuch, Kegs, Amy Coat Hanger, and Breyer all want to do away with it. The problem, like Barrett writes in concurrence, is that no one knows what to replace it with.

You can tell how messy these issues can get just by reading the breakdown of votes in the 9-0 decision:

ROBERTS, C. J., delivered the opinion of the Court, in which BREYER, SOTOMAYOR, KAGAN, KAVANAUGH, and BARRETT, JJ., joined. BARRETT, J., filed a concurring opinion, in which KAVANAUGH, J., joined, and in which BREYER, J., joined as to all but the first paragraph. ALITO, J., filed an opinion concurring in the judgment, in which THOMAS and GORSUCH, JJ., joined. GORSUCH, J., filed an opinion concurring in the judgment, in which THOMAS and ALITO, JJ., joined.
(I think my favorite part is Breyer joining Barrett's concurrence except for one paragraph.)

The Decision

It really can't be overstated just how poorly this case could have gone. We have six people on the Supreme Court who seem to genuinely believe that their religion entitles — or even requires — them to discriminate against LGBTQ people (and pregnant people, but that's a rant for another day). Without winning a single vote from the left side of the Court, the six conservatives could have issued a broad ruling that put all kinds of civil and human rights laws in jeopardy.

A Supreme Court ruling giving the stamp of approval to discrimination on the basis of religion would be disastrous for more than just the LGBTQ community. The same reasoning could be used to invalidate any number of civil rights protections, from equal pay to racial discrimination. A lot of the same people who have "sincere religious beliefs" about how they have to discriminate against LGBTQ people also believe they are required to discriminate against women, BIPOC, and religious minorities. A person with a "sincere religious belief" that women shouldn't work outside the home could engage in all manner of employment discrimination. Places like Bob Jones University would, once again, be free to discriminate on the basis of race.

Instead of cheering discrimination on, the opinion uses the specific language of Philadelphia's non-discrimination law to say it didn't apply to CSS in this situation. The Court makes it clear that it views foster care as a special case, unlike public-facing stores and transportation. The ordinance applies to "public accommodations," which it defines as "[a]ny place, provider or public conveyance, whether licensed or not, which solicits or accepts the patronage or trade of the public or whose goods, services, facilities, privileges, advantages or accommodations are extended, offered, sold, or otherwise made available to the public."

But "[c]ertification as a foster parent," writes the Court, "is not readily accessible to the public. It involves a customized and selective assessment that bears little resemblance to [public accommodations such as] staying in a hotel, eating at a restaurant, or riding a bus."

Roberts also didn't go particularly far on the First Amendment issues involved, here. At its core, this is a free exercise case. But, again, the opinion was very specifically written for these particular facts. The contract Philadelphia uses with foster care agencies says that foster parents can't be rejected because of their sexual orientation "unless an exception is granted by the Commissioner [of Human Services]."

Including this exception in the contract, says the Court, puts this case outside of Smith. The government isn't required to accommodate every religious belief in its facially neutral laws — but if it already offers an exception, that's another story. The Court said in Smith that "where the State has in place a system of individual exemptions, it may not refuse to extend that system to cases of 'religious hardship' without compelling reason." And, here, the Court ruled that Philadelphia did not present a compelling reason.

Importantly, like the ACLU of Pennsylvania notes, this case does not create a license to discriminate.
The Supreme Court did not accept CSS's argument that the Constitution bars the government from enforcing non-discrimination requirements against those with religious objections to complying. In fact, the court recognized that the city's interest in enforcing nondiscrimination protections for same-sex couples was "a weighty one." And it did not accept CSS' invitation to overhaul the court's longstanding free exercise jurisprudence. However, the court held that the city's decision to end CSS' foster care contract was unconstitutional because the contract itself was not generally applicable, where it contained a mechanism for discretionary exemptions from its terms.

So ... yeah

Listen. I don't love this case. And I certainly don't assume that it would have been decided the same way had the government been working with, oh, I don't know, a Muslim foster care agency. But at the end of the day, it could have been so much worse.

People on all sides of the debate expected Fulton v. Philadelphia to be a major blow against equal rights and a big win for the religious right. This is our first full term with a Supreme Court that includes not one, but three, Trump appointees, and is 6-3 right-wing.

The opinion we ended up with, while far from perfect, is basically the best thing we could have asked for.

Here it is:


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Jamie Lynn Crofts
Jamie Lynn Crofts is sick of your bullshit. When she’s not wrangling cats, she’s probably writing about nerdy legal stuff, rocking out at karaoke, or tweeting about god knows what. Jamie would kindly like to remind everyone that it’s perfectly legal to tell Bob Murray to eat shit.

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