Supreme Court unanimously rules Catholic foster agency can turn away gay couples

LGBT+ activists rally in front of the Supreme Court in October 2019

The Supreme Court has ruled that a Catholic foster agency can legally turn away same-sex couples in a blow to LGBT+ families.

On Thursday (17 June), the US Supreme Court, which has had a 6-3 conservative majority since Amy Coney Barrett filled the seat of the late Ruth Bader Ginsburg, unanimously ruled in favour of Catholic Social Services (CSS), which argued that it should still receive taxpayer funding despite refusing to place children with same-sex couples.

The city of Philadelphia stopped referring children to CSS in 2018 after learning of its discriminatory policy, but the fostering and adoption agency argued that the city infringed upon its First Amendment right to religious freedom. The case, Fulton v Philadelphia, was taken up by the Supreme Court after defeats in lower courts.

In its ruling on Thursday, the Supreme Court wrote: “The refusal of Philadelphia to contract with CSS for the provision of foster care services unless CSS agrees to certify same-sex couples as foster parents violates the Free Exercise Clause of the First Amendment.

“The city’s actions burdened CSS’s religious exercise by forcing it either to curtail its mission or to certify same-sex couples as foster parents in violation of its religious beliefs.”

Thursday’s ruling allowing CSS to turn away gay couples has worsened fears that the case could have broader ramifications than simply for adoption and foster care agencies, but this is unlikely to be the case.

Although in Fulton v Philadelphia, the Supreme Court ruled that the city’s non-discrimination protections violated CSS’s right to religious freedom, the ruling notes: “The question is not whether the city has a compelling interest in enforcing its non-discrimination policies generally, but whether it has such an interest in denying an exception to CSS.”

The ruling does not prevent local governments from imposing non-discrimination rules on outside agencies they work with, but rather states that these non-discrimination rules must be “both neutral and generally applicable”.

The court ruled that Philadelphia’s non-discrimination policy was not “neutral and generally applicable” because, as written in its contract with CSS, it included exemptions which were left up to the “sole discretion” of one city official.

In light of this, Human Rights Campaign president Alphonso David said in a statement: “Though today’s decision is not a complete victory, it does not negate the fact that every qualified family is valid and worthy – children deserve a loving, caring, committed home.

“We celebrate the LGBTQ families who are dedicated to providing homes to the thousands of children in the child welfare system.

“Yet we know there is more work that must be done to ensure that the best interest of the child is always prioritised, including through family reunification. And there is more work to be done to ensure that LGBTQ people do not face discrimination anywhere in the country in every aspect of public life – our next step is to pass the Equality Act.”