Today, the U.S. Supreme Court issued a narrow ruling in Fulton v. City of Philadelphia, a case brought by Catholic Social Services, a foster care agency seeking a religious exemption from the city of Philadelphia’s LGBTQ-inclusive nondiscrimination ordinance.
The case arose after Catholic Social Services (CSS) violated its contract with the city by refusing to place children in the care of same-sex couples.
The Court today found in favor of Catholic Social Services on the very narrow aspect that Philadelphia did not apply its own local policy neutrally. What the ruling did not do was create a broad license to discriminate which is what LGBTQ opponent were hoping for.
Specifically, the Court’s 9-0 decision held that local governments’ non-discrimination ordinances do not conflict with the First Amendment as long as they do so neutrally. The Court’s narrow ruling applies only to the City of Philadelphia’s contract with CSS.
As Shannon Minter, Legal Director for the National Center for Lesbian Rights, writes in response to today’s ruling, “Properly understood, today’s decision is a significant victory for LGBTQ people. The Court ruled in favor of Catholic Social Services, but on the narrowest possible ground, based on language in the City of Philadelphia’s contract that authorized individualized exemptions for any provider.”
“The Court did not change the current constitutional framework, which permits governments to enforce anti-discrimination laws that prohibit discrimination against LGBTQ people even when doing so may have a disparate burden on those who hold certain religious beliefs,” added Minter. “As a result of today’s decision, those who feared the Court might create a sweeping new religious exemption to such laws can breathe a sigh of relief.”
Justice Samuel Alito wrote today that if Philadelphia were to “eliminate the never-used exemption…voilà, today’s decision will vanish.”
This is similar to the Supreme Court’s 2018 Masterpiece Cakeshop ruling which narrowly held in favor of a Colorado baker who refused to bake a wedding cake for a same-sex couple. Instead of ruling against the state’s nondiscrimination laws, the court found the Colorado Civil Rights Commission had shown animus against the baker by not giving “fair consideration” to his claims.
An October 2020 survey from PRRI found a very broad majority of Americans (70%) oppose allowing religiously affiliated agencies that receive taxpayer funding to refuse to accept qualified gay and lesbian couples as foster parents, including 31% who strongly oppose it.
Pro-LGBTQ lawyers and activists shared their thoughts on the Fulton ruling on Twitter.
Josh Block, of the ACLU’s LGBT Project, underscored that the ruling “applies only to this contract” and “does not apply to civil rights law.”
Bottom line: Fulton applies only to this contract, which had an unusual system of individualized, discretionary exemptions. It does not apply to civil rights laws, none of which have the same types of individualized exemption process.
— Josh Block (@JoshABlock) June 17, 2021
Chase Strangio concurred that the decision “is very narrow and fact-specific” which can be viewed as “the good news.”
Here's the good news on Fulton.
It is very narrow and fact-specific.
Alito hates it.
General doctrine survives – especially if Breyer retires.
— Chase Strangio (@chasestrangio) June 17, 2021
Alphonso David, president of the Human Rights Campaign, issued a statement which read in part:
“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. We celebrate the LGBTQ families who are dedicated to providing homes to the thousands of children in the child welfare system.
“Yet we know there is more work that must be done to ensure that the best interest of the child is always prioritized, including through family reunification. And there is more work to be done to ensure that LGBTQ people do not face discrimination anywhere in the country in every aspect of public life—our next step is to pass the Equality Act.”
BREAKING: #SCOTUS has ruled non-discrimination laws apply to taxpayer-funded child services so long as they are enforced neutrally but that Philadelphia’s law was not neutral. pic.twitter.com/COfLsBfghM
— Human Rights Campaign (@HRC) June 17, 2021
Shannon Minter, Legal Director for the National Center for Lesbian Rights, wrote:
“Properly understood, today’s decision is a significant victory for LGBTQ people. The Court ruled in favor of Catholic Social Services, but on the narrowest possible ground, based on language in the City of Philadelphia’s contract that authorized individualized exemptions for any provider.
“The Court did not change the current constitutional framework, which permits governments to enforce anti-discrimination laws that prohibit discrimination against LGBTQ people even when doing so may have a disparate burden on those who hold certain religious beliefs. As a result of today’s decision, those who feared the Court might create a sweeping new religious exemption to such laws can breathe a sigh of relief.”
Brian K. Bond, Executive Director of PFLAG National, released the following statement:
“Youth in foster care have the right to stability and to be placed with families that support and affirm them for who they are — inclusive of their sexual orientation and gender identity. Today’s Supreme Court ruling affirms that discrimination by government contractors is not permitted, and foster youth and their families are protected by nondiscrimination laws. PFLAG National stands with the former and current foster youth, foster caregivers who are LGBTQ+, and found families everywhere as we continue to fight for the rights of LGBTQ+ people to secure full equality. The Senate must pass the Equality Act now to protect the rights of youth, families, and LGBTQ+ people everywhere.”
And from Muslim Advocates Senior Staff Attorney Matt Callahan:
“We are disappointed in the Supreme Court’s decision to protect discrimination in Philadelphia but we are relieved that a more sweeping ruling legalizing taxpayer-funded religious discrimination was avoided. American Muslims, all religious minorities, LGTBTQ+ people and all minority groups in the U.S. can breathe a qualified sigh of relief—at least for now. However, we must prepare to fight this ongoing legal assault on anti-discrimination laws, supposedly in the name of religious freedom.”