Supreme Court Rules Philadelphia Discriminated Against Catholic Foster Care Agency

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June 17, 2021

The U.S. Supreme Court today ruled that the City of Philadelphia demonstrated anti-religious bias in refusing to contract with Catholic Social Services (CSS) for foster parent licensing and recruitment because CSS excludes same-sex couples from its licensing process, contrary to the nondiscrimination requirements of the City’s contracts. The Court held that the City’s system violated CSS’s religious rights because it permits agencies to obtain exceptions to the nondiscrimination rules for some reasons, but not for religious reasons. M. Currey Cook, Counsel and Youth in Out-of-Home Care Project Director at Lambda Legal, issued the following statement.

“Today’s ruling by the Supreme Court is troubling but, importantly, it refused to give a free pass to people or agencies that want to discriminate against LGBTQ people for religious reasons and is limited to the specifics of Philadelphia’s foster care system. Instead, the Court validated the City’s ‘weighty’ interest in the equal treatment of LGBTQ prospective foster parents and foster children. The only reason those interests did not carry the day was due to the specifics of the City’s contract. Because the Court decided the case on contract-specific grounds, the City can address the situation by rewriting its contracts. 

“But make no mistake.  Philadelphia has never refused to work with Catholic Social Services. The agency has continued to receive millions of dollars in foster care contracts from Philadelphia and the contract at issue simply applied a standard, important nondiscrimination principle to its contract agencies. Foster care is a government function, and all governments have a compelling interest in ensuring their contract agencies, including faith-based ones, treat all children and families equally. And today’s ruling does mean, at least for now, that different-sex married couples have access to all city agencies, while same-sex couples do not. 

“To get to today’s result, the Court prioritized the interests of the religious agency over the City’s commitment to equal and professionally appropriate treatment of the children in its care. Some of the language in the decision is worrying because it fails to appreciate how deciding the case in this manner will result in harm to the children in Philadelphia’s care. However, this is a case in which no evidence was presented about same-sex couples who had applied to CSS and then been turned away or about children who had been denied equal treatment and respect based on an LGBTQ identity. When confronted with such facts in a future case, the Court will have to grapple for the first time with the ways such discrimination harms the foster children whose needs and best interests must always be paramount in child welfare cases.

“Any rationales that allow contract agencies to discriminate harm all children in care who need family foster homes if they cannot safely return to their parent or parents. LGBTQ foster children, the data shows, constitute almost one-third of all children in the foster care system and are over-represented in group homes and facilities because of a lack of foster homes. These children have a critical need for a foster care licensing system that welcomes everyone. Today’s ruling is concerning because it may give governments pause or cause confusion regarding nondiscrimination requirements in contracts.” 

Today’s ruling came in Fulton v. City of Philadelphia, filed in May 2018 after the City notified CSS that it could no longer violate the terms of its foster family licensing government contract and Philadelphia’s nondiscrimination law by refusing to license same-sex couples. In a friend-ot-the-court brief filed in August on behalf of itself and 26 local, state, and national organizations that serve LGBTQ youth, Lambda Legal alerted the Supreme Court to the serious harm to the wellbeing of LGBTQ youth in Philadelphia’s foster care system and foster care systems nationwide if government-funded providers were permitted to turn away same-sex couples and thereby (i) send the damaging message that same-sex parents are not good parents and not equal under the law, (ii) reduce the pool of homes likely to welcome and support LGBTQ youth, or (iii) refuse to serve or otherwise discriminate against LGBTQ youth. Read about the case and Lambda Legal’s amicus brief here.

Read today’s ruling here:

Also, read about Marouf v. Azar, Lambda Legal’s case on behalf of a same-sex couple turned away by a government-funded, faith-based agency when they applied to be foster parents in Texas, and Rogers v. HHS, Lambda Legal’s case on behalf of a same-sex couple turned away by a government-funded, faith-based agency when they tried to foster a child in South Carolina. The federal trial courts in the Marouf and Rogers cases have held that our clients’ have valid claims.  Lambda Legal is also suing HHS in Family Equality v. Azar for the Trump administration’s decision simply to stop enforcing existing federal nondiscrimination rules protecting LGBTQ parents, foster and adoptive parents, and children in the child welfare system nationwide and for eliminating those protections in a new HHS Grants Rule in Facing Foster Care in Alaska v. HHS.

Authoring the brief for Lambda Legal were Senior Counsel M. Currey Cook and Senior Counsel Jennifer Pizer. The case is Fulton v. City of Philadelphia.