SCOTUS May Give Foster Care Agencies a Right to Refuse Same-Sex Couples

The court could give people, organizations, and corporations a constitutional right to discriminate when they say their faith demands it.

LGBTQ rights activists protest outside the Supreme Court, holding signs that say "Don't Roll Back Our Rights."
Demonstrators outside the U.S. Supreme Court on Oct. 8, 2019. Saul Loeb/AFP via Getty Images

On Monday morning, the Supreme Court’s conservative majority escalated its crusade to legalize anti-LGBTQ discrimination under the First Amendment. The court agreed to hear a challenge to a Philadelphia policy that bars the referral of foster children to religious agencies that won’t work with same-sex couples. It also announced that it will consider granting religious individuals, groups, and businesses a First Amendment right to exempt themselves from certain laws, like nondiscrimination measures, by citing their religious beliefs. When SCOTUS hears the case next term, it could give people, organizations, and corporations a constitutional right to discriminate when they say their faith demands it.

That case, Fulton v. Philadelphia, is an ideal vehicle for this assault on LGBTQ rights. In 2018, the Philadelphia Inquirer reported that Catholic Social Services, a religious foster agency, would not work with same-sex couples. The city had long contracted with the agency to screen and certify potential foster parents. But its contract with Catholic Social Services, pursuant to the city’s human rights ordinance, prohibits anti-gay discrimination. Because the agency insisted on discriminating against gay couples, Philadelphia allowed its foster care contract to expire. The city still contracts with Catholic Social Services for other services—for instance, it still operates group homes for children who haven’t found foster parents—and these contracts add up to about $18.5 million. It is only forbidden from screening and certifying families for foster care because it turns away same-sex couples.

Philadelphia’s actions indisputably furthered the guiding principle of family law: the best interest of the child. After all, Catholic Social Services wanted to shrink the pool of potential foster parents by excluding same-sex couples, reducing the odds that children will find loving homes. It is difficult to see how this effort to protect vulnerable kids could be unconstitutional under current law. In 1990’s Employment Division v. Smith, the Supreme Court ruled that “neutral laws of general applicability” do not violate the First Amendment if they burden religious exercise. There is an exception to this rule when government officials target a specific faith or express hostility toward certain beliefs. But there is no evidence that Philadelphia did that here; rather, the city expressed its “respect” for the agency’s “sincere religious beliefs.” It merely concluded that, under the city’s nondiscrimination law, it could not maintain a contract with any agency that rejects same-sex couples.

Catholic Social Services responded by suing Philadelphia, asking a federal judge to rule that the city violated the free exercise clause and to force it to renew Catholic Social Services’ foster care contract. The judge sided with Philadelphia, and the 3rd U.S. Circuit Court of Appeals unanimously affirmed. Catholic Social Services, the 3rd Circuit wrote, “can point to no specific evidence demonstrating that the City acted other than out of a sincere commitment to equality and non-discrimination.” If every government effort to enforce nondiscrimination laws against religious entities is “construed as ill will against the religious belief itself, then Smith is a dead letter, and the nation’s civil rights laws might be as well.” Catholic Social Services asked the Supreme Court to halt the decision, and it declined in August 2018—though Justices Clarence Thomas, Samuel Alito, and Neil Gorsuch dissented.

Now that the Supreme Court has taken up the case, Fulton won’t simply have disastrous consequences for foster kids. The case also asks the justices to overrule Smith, thereby creating a fundamental right for religious people to ignore laws that happen to restrict free exercise.

This argument has sweeping implications. If the Supreme Court reversed Smith, it would allow anyone to demand a carve-out from laws that go against their religion, unless those laws are “narrowly tailored” to serve a “compelling government interest.” (It will be very difficult to meet this stringent standard.) By writing religious exemptions into the Constitution, SCOTUS would oblige every city and state to excuse religious people and businesses from laws they dislike. LGBTQ nondiscrimination laws like Philadelphia’s would become optional for those whose faiths condemn same-sex relationships and gender transition. Small businesses and giant corporations alike could deny service to LGBTQ people and discriminate against LGBTQ employees. Hospitals, doctors, and pharmacy employees could refuse to provide contraception. As Justice Antonin Scalia wrote in Smith, “any society” with this system of freewheeling religious accommodations “would be courting anarchy.”

When Scalia wrote Smith in 1990, conservatives typically opposed religious exemptions, in part because the people seeking them often belonged to minority faiths. Smith, for example, sought a right to use peyote during ceremonies at the Native American Church. Over the past 30 years, however, many conservative jurists have come to embrace religious exemptions, because the individuals and corporations requesting them are frequently evangelical Christians who want to discriminate against LGBTQ people and women. Thomas, Alito, and Gorsuch, as well as Justice Brett Kavanaugh, have all questioned Smith. If they can nab Chief Justice John Roberts’ vote to kill it, they will open the floodgates to a new era of legalized discrimination.

If Roberts flinches, the conservative justices have a narrower (though still repugnant) option: They can establish a free speech right for religious foster care agencies to discriminate against same-sex couples. That might sound bizarre, because Catholic Social Services is free to vocally oppose same-sex marriage; it need only accept same-sex applicants to receive a city contract. In fact, as the 3rd Circuit noted, Philadelphia works with religious agencies that oppose same-sex marriage but do not discriminate against same-sex couples.

But Catholic Social Services argues that Philadelphia actually forced it to “speak and act as the government prefers” by requiring it to accept gay applicants. It asserts that the city wants to “compel the endorsement of ideas” that the organization opposes—namely, support for same-sex marriage. This claim is similar to the charge, in Masterpiece Cakeshop, that Colorado forced a baker to “endorse” same-sex marriage by baking a cake for a same-sex couple. The Supreme Court ducked that question in Masterpiece, perhaps because Justice Anthony Kennedy wasn’t willing to embrace it. Now, with Kennedy replaced by Kavanaugh, there may be five votes to hold that the government can’t make businesses (including government contractors) “endorse” nondiscrimination laws by complying with them.

In case that weren’t enough, Alito, joined by Thomas and Gorsuch, wrote separately on Monday to profess his desire to force businesses to grant special treatment to religious employees. The Civil Rights Act bars workplace discrimination “because of religion,” but since 1977’s Trans World Airlines v. Hardison, SCOTUS has held that employers need not accommodate a worker’s religious exercise unless it would be very easy to grant accommodations. Alito wants to overrule that precedent and force employers to accommodate a much broader swath of religious practices. For example, he has suggested that public schools may have to let teachers lead school prayer, even though school-sponsored prayer is unconstitutional. Under Alito’s vision of Title VII, companies may also have to let employees refuse to serve certain customers—say, gay people, or women seeking contraception. Government agencies could also be obligated to let officials exempt themselves from specific duties, like clerks who will not provide marriage licenses to same-sex couples.

Alito, Thomas, Gorsuch, and Kavanaugh have all signed onto at least one opinion doubting Hardison and Smith. Roberts has played his cards close to his chest, though he did sign onto an Alito dissent suggesting that pharmacists can’t be required to sell Plan B emergency contraception. It is obvious that all five justices want to force the government to tolerate faith-based discrimination. The key question is how quickly they will move against decades-old precedent.