U.S. High Court Backs Catholic Group Over Gay Foster-Care Rights


The U.S. Supreme Court ruled that Philadelphia violated the Constitution when officials excluded a Catholic charity from part of the city’s foster-care program because the group wouldn’t help place children with same-sex couples.

The unanimous ruling said the city infringed the rights of Catholic Social Services by enforcing anti-discrimination requirements in contracts with the private agencies that screen potential foster families.

The decision bore hallmarks of a compromise -- or at least one where the court’s liberal wing limited the damage. All three liberals joined Chief Justice John Roberts’s opinion for the court, while the conservative justices -- Samuel Alito, Clarence Thomas and Neil Gorsuch -- said they would have issued a more sweeping ruling favoring religious rights.

Roberts pointed to a provision in Philadelphia’s foster-care contracts that gives a city official discretion to waive anti-discrimination requirements. He said that provision meant the rules were constitutionally suspect because they weren’t “generally applicable.”

“A law is not generally applicable if it invites the government to consider the particular reasons for a person’s conduct by providing a mechanism for individualized exemptions,” Roberts wrote.

The case marked a key test for the court on the intersection of religious freedom and anti-gay discrimination. The court in recent years has strengthened religious rights in a series of decisions, even as it has also embraced broader protections for LGBTQ people.

The court stopped short of overruling a 1990 decision that said the government can enforce generally applicable laws without making an exception for religious groups. That ruling, though written by conservative Justice Antonin Scalia, has become a prime target of religious-rights groups in recent years.

Catholic Contractor

Catholic Social Services, one of about 30 foster-care agencies that have contracts with the city, has worked with Philadelphia for more than 50 years. Its policies came under scrutiny in 2018, when a newspaper reporter told a city official the Catholic group and another agency were refusing to certify same-sex couples to become foster parents.

After negotiations with city officials failed, Catholic Social Services signed a more limited contract for the 2019 fiscal year, ending its status as a so-called foster family care agency. FFCAs, as they are known, conduct home studies to determine whether potential foster families are suitable.

The dispute with the city didn’t affect other aspects of Catholic Social Services’ Philadelphia foster-care work, including its management of two congregate-care facilities, which provide group housing for children. The group also provides social services to foster children as a so-called community umbrella agency.

Catholic Social Services said that it had never turned away a same-sex couple and that it would refer any who applied to another foster-care agency.

Even before the ruling, the term had already been a success for religious-freedom advocates. A series of orders issued by the court’s conservative wing has bolstered church rights by blocking capacity restrictions state and local governments had imposed on houses of worship during the pandemic.

The case is Fulton v. Philadelphia, 19-123.

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