With votes still being counted in the 2020 election, the Supreme Court is hearing oral arguments in a case that could determine the extent to which organizations can use religious freedom protections to discrimination against LGBTQ+ and other minority individuals.
The case, Fulton v. City of Philadelphia, centers around whether Catholic Social Services (CSS), a religious organization contracted with the City of Philadelphia to identify and coordinate foster homes for children, is required to comply with Philadelphia’s foster system rules that prohibit discrimination against individuals on the basis of their sexual orientation or gender identity. The foster care rules were adopted in support of Philadelphia’s Fair Practices Ordinance, which prohibits discrimination in employment, housing, and public accommodations.
Twenty-eight state and national LGBTQ+ organizations, including FreeState Justice, filed an amicus brief in support of the City of Philadelphia on August 20, 2020. The amicus brief outlines how creating broad religious exemptions to nondiscrimination laws could significantly undermine the gains the LGBTQ+ community has made over the past several decades, as well as hurt other groups that have historically been victims of discrimination.
According to the amicus brief, “Declaring a constitutional right for those with religious objections not to comply with nondiscrimination requirements would supplant more nuanced legislative solutions, would upend vital protections against discrimination, and would impose grave harms on LGBTQ people, as well as people of color, members of minority faiths, women, people living with disabilities, and our broader society.”
The Fulton v. City of Philadelphia case arose after a local news report in 2018 that uncovered discrimination by CSS, which led Philadelphia to conduct its own investigation, finding that CSS intentionally discriminated against LGBTQ+ couples by denying them foster parent opportunities, a violation of the organization’s contract with the City of Philadelphia.Upon learning about CSS’s discriminatory practices, the City declined to renew the organization’s contract.
After the City declined to renew their contract, CSS sued, arguing the First Amendment’s Free Exercise Clause allows it to ignore a contractual term it objects to on religious grounds. In its lawsuit, CSS effectively seeks to force the City to maintain their contract and allow the organization to continue denying foster care opportunities to LGBTQ+ families.
Although CSS’s claims have been unanimously rejected by judges on both the Eastern District of Pennsylvania and the Third Circuit Court of Appeals, it now faces a more favorable audience in the Supreme Court, where recent-appointee Amy Coney Barrett has joined a 6-3 conservative majority. A Supreme Court decision in favor of CSS could significantly undermine the efficacy of municipal, state, and federal nondiscrimination laws, though even a narrower decision focused on government contracts could make it more difficult for government agencies to ensure that those who act on their behalf are treating everyone equally and with human dignity. A decision for CSS could also open the way for discrimination on other grounds, including race, national origin, sex, and even religion.
Interested in learning more about the Fulton case and how it could affect LGBTQ+ rights? FreeState Justice has joined with other LGBTQ+ organizations to present Our Day In Court, a virtual town hall at 8 p.m. Eastern time, November 4, 2020. To learn more and to RSVP for the virtual town hall, visit https://www.ourdayincourt.org.
by Mackenzie Dadswell (she/her), Staff Attorney