As the fate of the presidential race hangs in the balance, the Supreme Court will hear arguments today in the case of Fulton v. City of Philadelphia, which could have broad implications for LGBTQ+ adoption rights across the nation.
The case hinges on whether or not Philadelphia can require religiously affiliated foster care agencies to include LGBTQ+ parents in their options for child placement, even if the agency may have religious objections to doing so. In 2018, the Pennsylvania city stopped contracting with Catholic Social Services after an investigation by the Philadelphia Inquirer revealed that the organization was one of two agencies with policies barring the placement of children in LGBTQ+ households, which violated the city’s non-discrimination requirements.
Bethany Christian Services agreed to comply, but Catholic Social Services refused and instead decided to fight the city.
“Philadelphia’s actions cannot be constitutional,” said Mark L. Rienzi, an attorney representing Catholic Social Services, in a statement to the Philadelphia Inquirer. “The city has attempted to interfere with the decision-making of a church, telling a Catholic ministry how to interpret Catholic doctrine and penalizing [it] when it followed the archbishop instead of” the Department of Human Services, which oversees the foster care system.
The city of Philadelphia has won in the lower courts to date and has maintained that it’s asking Catholic Social Services merely to evaluate whether would-be LGBTQ+ parents are able to care for children who need placement, rather than demanding the agency affirm LGBTQ+ couples.
“As a private citizen, CSS may serve foster families as its faith dictates,” wrote Philadelphia city solicitor Marcel Pratt in a recent brief. “But when it voluntarily chooses to perform services for the government, it lacks a right to insist upon exercising government authority. … in a manner that the city has deemed contrary to the interests of its residents and the children in its care.”
According to the Movement Advancement Project, 11 states allow child welfare agencies to refuse providing services to prospective LGBTQ+ parents if doing so conflicts with their religious beliefs, including Alabama, Mississippi, Oklahoma, South Carolina, Texas, and Virginia. In addition, 21 states — including Pennsylvania — don’t have any explicit protections at the statewide level against discrimination in adoption based on sexual orientation or gender identity.
The case marks the first on LGBTQ+ rights before the Supreme Court under the conservative majority expanded with the recent confirmation of Justice Amy Coney Barrett. The balance of the Court now sits at 6-3, with liberal Justices Stephen Breyer, Elena Kagan and Sonia Sotomayor now firmly in the minority following the death of Ruth Bader Ginsburg.
Barrett has come under intense scrutiny for her record and beliefs about LGBTQ+ people, including her service on the board of trustees of a school that refused admission to children of same-sex parents. She has also expressed opposition to same-sex marriage and has previously misgendered transgender women while expressing doubt that trans people should be covered under federal nondiscrimination rights laws. During her confirmation hearings, Barrett apologized after Sen. Mazie Hirono confronted her over remarks referring to LGBTQ+ sexuality a “preference.”
According to advocates such as the American Civil Liberties Union, the case could cause 440,000 children in the nation’s child welfare system to lose out on qualified parents who are LGBTQ+ or a different faith than the agency. It may also determine whether or not people seeking services at homeless shelters or food banks could be turned away because of an organization’s religious beliefs, even with taxpayer funding.
