June 17, 2021 Special to the Pennsylvania Capital-Star
(First appeared in the Philadelphia Gay News June 17, 2021)
The decision was unanimous. In a 9-0 ruling bound to have a long-ranging impact, the U.S. Supreme Court found the City of Philadelphia violated the First Amendment rights to religious freedom of Catholic Social Services (CSS) in the case of Fulton v. City of Philadelphia.
The court determined that Philadelphia’s refusal to contract with Catholic Social Services 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 widely anticipated decision, written by Chief Justice John Roberts, ruled that Philadelphia cannot bar CSS from screening potential foster parents, even though the agency refuses to work with same-sex couples, in violation of Philadelphia’s non-discrimination ordinance.
The case traces its roots to In 2018, when the Philadelphia Inquirer revealed that CSS refused to place foster children with same-sex couples. After investigating the city declined to renew its contract, saying that CSS violated both the city’s non-discrimination ordinance and the terms of its contract, according to Vox.
The importance of Fulton to religious freedom issues was signaled by the volume of opinions written in the case. Justices Stephen Breyer, Sonia Sotomayor, Elena Kagan, Brett M. Kavanaugh and and Amy Coney Barrett joined Roberts.
Barrett filed a concurring opinion, in which Kavanaugh joined, and in which Breyer joined in all but the first paragraph. Justice Samuel Alito filed an opinion concurring in the judgment, in which Justices Clarence Thomas and Gorsuch joined. Justice Neil Gorsuch filed an opinion concurring in the judgment, in which Thomas and Alito joined.
Two lower court rulings had previously found in favor of the city, including the United States Court of Appeals for the Third Circuit, in Philadelphia, which found unanimously for the city.
Agreement with the decision was far from unanimous. Several court watchers called the decision another clear victory for the religious right. A recent study published in the Supreme Court Review found that the Court has ruled in favor of religious claimants 81 percent since John Roberts’ appointment in 2005. In the 52 years prior, it was closer to 50 percent.
In a statement, Preston Heldibridle, executive director of the Pennsylvania Youth Congress, an LGBTQ advocacy organization, said the high court’s ruling was “a blow to children and families in the foster care system within the city of Philadelphia, but it was a ruling specifically based on the technicalities of Philadelphia’s policies.
“The Supreme Court does not recognize a general right to discriminate based on religious beliefs. Applied neutrally, non-discrimination policies are lawful, and above all, they are necessary,” Heldibridle continued. “To ensure LGBTQ+ Americans have equal protections under the law, Congress must pass federal non-discrimination protections based on sexual orientation and gender identity, and for Pennsylvanians the General Assembly must take the same action. It is past time for LGBTQ+ Americans to have equal rights throughout our nation.”