How SCOTUS Voted in Fulton & Why This Could Represent Troubles Ahead for the LGBTQ+ Community
By: Chris Gilmore/TRT Reporter—
WASHINGTON—Today, the United States Supreme Court unanimously ruled that the City of Philadelphia violated the First Amendment by creating a nondiscrimination policy that allowed for potentially discriminatory individualized exemptions for some but not all. Such an exemption was refused to the Catholic organization in Fulton v. City of Philadelphia. In a 9-0 decision, the Court ruled that governments can enforce nondiscrimination laws as long as they do so neutrally, but that the city of Philadelphia was not neutral in the application of its nondiscrimination laws.
“There are thousands of LGBTQ+ couples across the country seeking to provide love and support for vulnerable children in foster care,” read a statement by Massachusetts Attorney General Maura Healey. “These children deserve every opportunity available to be placed with capable and loving parents, and foster parents and young people alike deserve protection against discrimination in our child welfare system.
“While we are disappointed with the Court’s decision today regarding Philadelphia’s foster care system, LGBTQ+ couples seeking to foster children here in Massachusetts should know that they continue to benefit from our state’s protections against discrimination.”
According to the Human Rights Campaign, HRC, the case could have a sweeping, harmful impact in the provision of child welfare services by enabling discrimination beyond same-sex couples. It can also discriminate against LGBTQ people, interfaith couples, and single parents, married couples in which one prospective parent has previously been divorced, or other qualified parents to whom an agency has an objection.
“The Supreme Court determined that enforcing nondiscrimination laws is not in conflict with the First Amendment, but determined that the city of Philadelphia was not neutral in applying its nondiscrimination provisions,” said the HRC.
The narrow and limited ruling for Catholic Social Services, CSS, in Fulton v. City of Philadelphia focuses on specific contractual language. The ruling, also seen as a narrow win for the City, leaves intact the broader principle that governments can require contractors, including religious agencies, to comply with nondiscrimination laws — including those that protect same-sex married couples — when providing taxpayer-funded social services. While the Court found Philadelphia’s contract with CSS to be unenforceable, it only did so because the contract allowed individual discretionary exemptions on a case-by-case basis. The Court, equally, would not consider CSS’s claim. The case stemmed from a claim by CSS that it should have been allowed to decline to work with same-sex couples when providing foster care placement services under contract with the City of Philadelphia.
“Today’s ruling, while only applicable to the city of Philadelphia, is a troubling sign of anti-LGBTQ+ legal battles ahead,” said David J. Johns, executive director of the National Black Justice Coalition, via a statement. “According to the U.S. Supreme Court, the city of Philadelphia can permit Catholic Social Services and other child welfare agencies in the city to discriminate against same-sex couples and other people seeking to provide foster care based on the agency’s religious beliefs and contract exemptions. Although this is not the outcome we hoped for, we won’t back down now.”
Mary L. Bonauto, GLAD Civil Rights Project Director, agreed with Johns.
“Here the Court found only that Philadelphia’s ‘inclusion of a formal system of entirely discretionary exceptions’ made the contract’s nondiscrimination provision unenforceable as to CSS,” stated Bonauto via a press statement. “CSS’s desire to deny screening to same-sex couples is a disheartening reminder of the discrimination LGBTQ adults and young people still face even within a system charged with protecting vulnerable youth and families. We are encouraged by the many faith-based social services agencies that would rather serve everyone than exclude some.”
According to Bonauto, there is a way to explicitly protect the LGBTQ+ community in Congress.
“Congress also has an opportunity to act on this shared value and the wishes of the overwhelming majority of Americans, by passing the Equality Act to ensure clear and explicit protections from discrimination for LGBTQ people in vital social services and every area of life,” she explained in her statement.
The Equality Act, if passed by the Senate, would update federal law to include explicit and comprehensive nondiscrimination protections for LGBTQ+ Americans. It would also establish explicit clear and tangible anti-discrimination protections for LGBTQ+ people across fundamental aspects of everyday life — employment, housing, credit, education, public spaces and services, federally funded programs, and jury service.
“ … Because the Supreme Court did not make a unilateral decision balancing civil rights for all, we know additional legal battles on this matter are imminent,” according to Johns. “This case, and the widespread discrimination that continues in the child welfare system and beyond, reinforces the need to pass bills like the Equality Act and John Lewis Every Child Deserves a Family Act.”
In August 2020, Mass. AG Healey led 23 attorneys general in filing a brief with the U.S. Supreme Court in support of the City of Philadelphia’s nondiscrimination law and the right of LGBTQ+ couples to be foster parents. The brief argued that Philadelphia is entitled to require its own publicly contracted foster care agencies to follow the City’s nondiscrimination law and consider all qualified families seeking to care for children in need, without regard to prospective foster parents’ race, religion, sexual orientation, or other factors unrelated to their parenting abilities. The High Court, however, did not see it that plainly.
“Though today’s decision is not a complete victory, it does not negate the fact that every qualified family is valid and worthy—children deserve a loving, caring, committed home,” said Alphonso David, Human Rights Campaign President.
The Justices’ vote was unanimous.
“All nine Supreme Court justices voted to permit legal discrimination in the city of Philadelphia,” Johns further explained. “This will only harm children in the foster care system, who are all worthy of loving and supportive homes. Children deserve more than this ignorance, bias, and hate.”
And although Johns sees a silver lining, he finds the ruling to be a defeat for LGBTQ+ youth and children who, according to research, are disproportionately overrepresented in the foster care system.
“Despite today’s loss, we are grateful that the Court’s ruling does not allow all governments to turn a blind eye to tax-payer funded agencies who discriminate against LGBTQ+ people,” added Johns’ statement. “Going forward, we will continue to speak out and demand laws that protect all LGBTQ+ from discrimination without prejudice by advocating for legislation like the Equality Act. We will make our expectations clear to government service providers, businesses, employers, health care providers, and landlords. This fight is far from over.”
Compounding the inherent trauma of foster care, many LGBTQ youth in foster care have experienced rejection by their families of origin because of their LGBTQ status, only to then be further traumatized by discrimination and mistreatment while in foster care. Many of the country’s top child welfare organizations have spoken out in opposition to state governments’ attempts to enshrine anti-LGBTQ discrimination into the provision of child welfare services around the country. Those groups include the Child Welfare League of America, North American Council on Adoptable Children, National Center for Adoption and Permanency, Foster Club, and Voice For Adoption.
[From a Compilation of News Releases & TRT’s own Report]