Supreme Court Exempts Catholic Foster-Care Agency From Nondiscrimination Law

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WASHINGTON—The Supreme Court unanimously ruled Thursday that a Catholic social-service agency was entitled to a Philadelphia contract even if its religious views prevented it from compliance with local laws forbidding discrimination against same-sex couples.

The court’s decision, by Chief Justice

John Roberts,

was a narrow one, stopping short of fundamentally extending the preference for religious exercise that the Catholic agency—and several conservative justices in concurring opinions—argued the Constitution required.

The city of Philadelphia contracts with private agencies to screen foster parents for children in need. While a broad nondiscrimination policy is written into its contracts, Chief Justice Roberts observed that the agreements also authorize the city’s human-services department to grant exceptions.

Catholic Social Services, which for decades has received city contracts, was entitled to such an exception, the chief justice wrote, because the city can grant them for secular reasons. The city’s interest in equal treatment for same-sex couples—and in caring for children in need—wasn’t impaired, the court found, because some 20 other agencies with foster-service contracts are available to work with married LGBT foster parents.


Stephen Breyer,

Sonia Sotomayor,

Elena Kagan,

Brett Kavanaugh


Amy Coney Barrett

joined the majority opinion in the case, Fulton v. City of Philadelphia.


Samuel Alito,

Clarence Thomas


Neil Gorsuch

agreed that the Catholic agency should win, but argued in separate opinions that the court should go further, and reconsider a 1990 decision finding no constitutional right to avoid generally applicable laws for religious reasons.

“It’s a beautiful day when the highest court in the land protects foster moms and the 200-year-old religious ministry that supports them,” said Lori Windham, an attorney with the Becket Fund for Religious Liberty who represented Catholic Social Services before the Supreme Court. “Taking care of children, especially children who have been neglected and abused, is a universal value that spans all ideological divides.”

Diana Cortes, the Philadelphia city solicitor, said the court’s decision “usurped the city’s judgment that a nondiscrimination policy is in the best interests of the children in its care, with disturbing consequences for other government programs and services.“

Letting city contractors “set their own terms for how they provide public services will create a confusing patchwork in government programs and will weaken government nondiscrimination guarantees,” she said. The nondiscrimination policy, she added, encourages “a larger, more diverse pool of available foster parents” and sends “an important message of inclusion and acceptance to the many LGBTQ youth in the city’s care,” she said.

Catholic Social Services is one of many private agencies with which the city of Philadelphia contracts to provide various foster-care functions, including recruitment and certification of potential foster parents for orphans and other children who are wards of the state. Catholic Social Services accepts only couples that are married and, under church teachings, doesn’t recognize same-sex marriage.

Philadelphia’s Fair Practices Ordinance has barred sexual-orientation discrimination since 1982. When officials learned in 2018 that Catholic Social Services had a policy against working with LGBT couples, they insisted the agency come into compliance. Instead, the agency sued the city, arguing that Philadelphia law unconstitutionally forced it to choose between its charitable mission and fealty to Catholic religious beliefs.

Among other arguments, Catholic Social Services said that LGBT couples interested in being foster parents could apply with other agencies that have city contracts and don’t discriminate based on sexual orientation.

The Supreme Court in 2015 found that same-sex couples are entitled to marry on the same terms as opposite-sex couples, in a 5-4 decision that conservative dissenters argued was disrespectful of traditional religious beliefs. Since then, conflicts have been brewing over civil-rights laws prohibiting discrimination against LGBT individuals, and businesses and other organizations who for religious reasons deny recognition to same-sex marriages.

Philadelphia prevailed in lower courts, but the Supreme Court, particularly with the arrival of three


appointees since 2017, has repeatedly found that secular laws and regulations must yield to the requirements of religious exercise.

The decision in Fulton v. City of Philadelphia was another narrow win for religious objectors to same-sex marriage. In 2018, the court voided a penalty imposed by a Colorado state agency against a bakery that refused to prepare cakes for same-sex couples. It ruled on the limited grounds that officials may have been biased against the proprietor’s religious beliefs rather than carving out a broader exemption from antidiscrimination laws.

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Write to Jess Bravin at [email protected]

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