A Catholic, city-funded foster and adoption agency that adheres to a biblical definition of marriage and chooses not to place children with same-sex couples can be exempted from serving such couples, the Supreme Court ruled on Thursday (June 17).
In a unanimous ruling, the justices once again showed they were receptive to claims by religious groups—in this case Catholic Social Services. The agency had contracted with the city of Philadelphia to screen potential foster parents.
Beginning in 2018, the city of Philadelphia ended its contract with CSS, claiming the organization 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 nondiscrimination 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.
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“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 organizations to hold to their beliefs in violation of nondiscrimination 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 considered another victory, though small, for religious rights. A study published earlier this year found a 35 percentage-point increase in the rate of Supreme Court rulings that favor 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 penalized him for refusing to bake a cake for a gay wedding.
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 individualized process and you’re not willing to extend it to religious believers, then you’ll take the individualized process out,” Wilson said. “You won’t include it for anybody.”