A city-funded foster and adoption agency that opposes same-sex marriage on religious grounds can be exempted from serving such couples, the US Supreme Court ruled on Thursday.
In a unanimous ruling, the justices once again showed they were receptive to claims by religious groups – in this case Catholic Social Services, which refuses to work with same-sex couples. The agency had contracted with the city of Philadelphia to screen potential foster parents.
In this 10th November, 2020, file photo the sun rises behind the US Supreme Court in Washington. PICTURE: AP Photo/Alex Brandon/File photo.
Beginning in 2018, the city of Philadelphia ended its contract with CSS, claiming that the organisation violated a city ordinance banning discrimination.
In Fulton v Philadelphia, the court said Philadelphia was wrong to end a contract with the Catholic agency.
Catholic Social Services and two foster parents – one named Sharonell Fulton – sued the city, claiming the free exercise clause in the First Amendment gives the agency the right to opt out of the non-discrimination requirement. A lower court and a federal circuit court ruled in the city’s favor, so CSS appealed to the Supreme Court. The opinion, by Chief Justice John Roberts, reversed the circuit court ruling.
“The refusal of Philadelphia to contract with CSS for the provision of foster care services unless CSS agrees to certify same-sex couples as foster parents violates the Free Exercise Clause of the First Amendment,” the opinion states.
The court did not, however, establish a general right for religious organisations to violate non-discrimination laws.
The court ruled more narrowly that since a section in the city’s nondiscrimination policy allowed exceptions to the nondiscrimination policy at the city commissioner’s discretion (though none has ever been granted), it must also do so for Catholic Social Services’ sincerely held religious beliefs.
Still, the justices’ opinion was viewed as yet another victory for religious rights. A study published earlier this year found a 35 percentage-point increase in the rate of Supreme Court rulings that favour religion over the past 70 years.
In Burwell v Hobby Lobby, the court held that the contraception mandate in the Affordable Care Act violated the rights of a corporation owned by a religious family. And in Masterpiece Cakeshop v Colorado Civil Rights Commission, the court held that a baker’s First Amendment rights were violated by the state commission that enforced its anti-discrimination law.
Some critics feared the latest opinion may limit the scope of the landmark 2015 ruling that established a right to same-sex marriage, making clear LGBTQ Americans cannot expect the same protections as other groups.
The ruling comes as more Americans are feeling comfortable with same-sex marriage. Some 61 per cent of Americans support same-sex marriage and 31 per cent oppose it, a Pew Research poll shows.
Gay rights groups interpreted the ruling as another defeat for LGBTQ equality. A study by the Williams Institute at UCLA shows same-sex couples raising children were approximately seven times more likely than heterosexual couples raising children to have an adopted or foster child.
“This ruling will certainly impact foster care and adoption services immediately and perpetuate some pretty horrific myths in the culture – doubting our ability to provide effective parenting,” said Marianne Duddy-Burke, a lesbian who is executive director of DignityUSA, an organisation of Catholics committed to full inclusion of LGBTQ people.
Duddy-Burke and her wife were denied the ability to adopt through Catholic Charities in Massachusetts. The couple – both of whom are Catholic – were eventually able to adopt two children by working directly with the state.
But Douglas Laycock, a law professor at the University of Virginia and a leading scholar in the area of religious liberty, said that, as the ruling pointed out, there are more than 20 foster care agencies in Philadelphia, many catering to LGBTQ couples.
“No-one is going to have any difficulty adopting or offering foster care because of this decision,” he said. “If in some rural area the Catholic or Baptist agencies are the only ones in town and same-sex couples can’t get service, maybe the state does have a compelling state interest.”
But the effect of the ruling could make it more likely government agencies will become less flexible and exclude any exceptions to laws, said Robin Fretwell Wilson, a professor of law at the University of Illinois College of Law.
“If you have an individualised process and you’re not willing to extend it to religious believers, then you’ll take the individualised process out,” Wilson said. “You won’t include it for anybody.”
