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Supreme Court unanimously rules for Catholic group in Philadelphia foster-care dispute

The U.S. Supreme Court building. (Ricky Carioti/The Washington Post)

The Supreme Court ruled unanimously Thursday that Philadelphia was wrong to end a Catholic group’s contract to provide foster-care services because the organization refused to work with same-sex couples.

It was the latest victory for religious organizations at the increasingly conservative court, and the second time it has ruled against governments trying to enforce an anti-discrimination law protecting LGBTQ rights against those claiming religious liberty.

But the opinion, written by Chief Justice John G. Roberts Jr., was narrow enough to draw the support of the court’s three liberals — and the consternation of its three most conservative members for not going further.

Roberts reasoned that because Philadelphia theoretically allows some exceptions to its policy, the city had violated the Constitution’s guarantee of free exercise of religion by not extending one to Catholic Social Services, which screens potential foster-care parents.

“CSS seeks only an accommodation that will allow it to continue serving the children of Philadelphia in a manner consistent with its religious beliefs; it does not seek to impose those beliefs on anyone else,” Roberts wrote. “The refusal of Philadelphia to contract with CSS for the provision of foster care services unless it agrees to certify same-sex couples as foster parents cannot survive strict scrutiny, and violates the First Amendment.”

The opinion was joined by conservative Justices Brett M. Kavanaugh and Amy Coney Barrett, as well as the court’s liberals, Stephen G. Breyer, Sonia Sotomayor and Elena Kagan.

The court’s most conservative members — Justices Clarence Thomas, Samuel A. Alito Jr. and Neil M. Gorsuch — agreed with the outcome but were put off by its limited scope.

“The Court has emitted a wisp of a decision that leaves religious liberty in a confused and vulnerable state,” Alito wrote. “Those who count on this Court to stand up for the First Amendment have every right to be disappointed — as am I.”

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Alito said Roberts’s opinion hung on a “glitch” in Philadelphia’s contractual procedures and “might as well be written on the dissolving paper sold in magic shops.”

He said that it would be easy for Philadelphia to change its policy and that the ruling “provides no guidance regarding similar controversies in other jurisdictions,” such as San Francisco and D.C., whose anti-discrimination laws have caused clashes with Catholic charitable organizations.

That said, the case was another clear win for religious organizations, which have found a sympathetic ear at the high court.

In recent years, justices have ruled for religious organizations on resisting the provision of birth-control coverage that is required of other employers, in hiring and firing decisions, in allowing public funds for religious schools and in striking down coronavirus restrictions aimed at gatherings for worship services.

Micah J. Schwartzman, a University of Virginia law professor who specializes in the intersection of law and religion, said the “court’s signal for social service providers is clear enough: It will grant them religious exemptions, even when doing so entails allowing them to violate anti-
discrimination laws.”

He added: “No court in American history has been more solicitous of religious accommodations than this one.”

Lori Windham, a lawyer for the Becket Fund for Religious Liberty who argued the case on behalf of Catholic Social Services, said the decision is a strong “endorsement of religious freedom” that recognizes that religious social service agencies can serve their communities and that governments “should not restrict or exclude them because of their religious beliefs.”

Archbishop Nelson Perez of the Archdiocese of Philadelphia said in a call with reporters that the ruling is a “crystal-clear affirmation of First Amendment rights for the Archdiocese of Philadelphia and all charitable ministries throughout the U.S.”

Philadelphia City Solicitor ­Diana Cortes, responding in a written statement, called the ruling “a difficult and disappointing setback for foster care youth and the foster parents who work so hard to support them. . . . The Court has usurped the city’s judgment that a non-discrimination policy is in the best interests of the children in its care.”

But she said the city would continue to partner with CSS.

Gay rights advocates also said they were relieved that the decision was not more sweeping in scope and allows local governments to continue prohibiting discrimination against LGBTQ foster and adoptive parents.

“Today’s decision preserves the critical ability of governments to prohibit such rampant discrimination, which is an urgent need,” Cathy Sakimura, deputy director of the National Center for Lesbian Rights, said in a statement.

Philadelphia city officials ended the contract with Catholic Social Services after a 2018 article in the Philadelphia Inquirer described its policy against placing children with same-sex couples.

City officials said the agency’s actions violated the city’s anti-discrimination laws.

The Catholic agency and several foster parents sued.

A district judge and a unanimous panel of the U.S. Court of Appeals for the 3rd Circuit ruled that the city was within its rights to end the contract and was not targeting the Catholic agency for its religious views.

Instead, the court said, the city was simply refusing to do business with a group that would not abide by its nondiscrimination policy.

CSS, which has provided ­foster-care services for decades, said the city’s decision forced it either to violate religious views about marriage or forgo providing the kind of services essential to its mission.

It noted that it had never been approached by a same-sex couple and that other city contractors were happy to work with those couples.

Roberts made the same points in his opinion.

“CSS does not object to certifying gay or lesbian individuals as single foster parents or to placing gay and lesbian children,” he wrote. “No same-sex couple has ever sought certification from CSS. If one did, CSS would direct the couple to one of the more than 20 other agencies in the city, all of which currently certify same-sex couples.”

The suit had asked the court to overturn a 1990 case that, although written by the late conservative Justice Antonin Scalia, has become a target of religious conservatives.

Employment Division v. Smith held that laws incidentally burdening religion are ordinarily not subject to strict scrutiny under the free exercise clause so long as they are neutral and generally applicable. A government policy can survive strict scrutiny only if it advances “interests of the highest order” and is narrowly tailored to achieve those interests.

The appeals court said that applied in this case.

But Roberts found a way to avoid direct confrontation with that precedent. He said that Philadelphia’s policy allowed exceptions to its nondiscrimination at the sole discretion of the director. He acknowledged that the director had never given one but said the sole-discretion provision nonetheless rendered the policy no longer generally applicable.

“The question, then, 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,” Roberts wrote, and he found it did not.

“If anything, including CSS in the program seems likely to increase, not reduce, the number of available foster parents,” Roberts wrote, and the city’s argument that it might be sued for discrimination was only speculative.

The court last looked at the clash of gay rights and religious beliefs in 2018, when it ruled for a Colorado baker who refused to make a wedding cake for a same-sex couple. Roberts quoted from language in that decision that “our society has come to the recognition that gay persons and gay couples cannot be treated as social outcasts or as inferior in dignity and worth.”

But that “weighty” consideration, he wrote, “cannot justify denying CSS an exception for its religious exercise.”

Gorsuch’s concurring opinion criticized the majority for timidity in not directly confronting whether to overrule Smith.

“What possible benefit does the majority see in its studious indecision about Smith when the costs are so many?” he asked. “The particular appeal before us arises at the intersection of public accommodations laws and the First Amendment; it involves same-sex couples and the Catholic Church. Perhaps our colleagues believe today’s circuitous path will at least steer the Court around the controversial subject matter and avoid ‘picking a side.’ ”

The case is Fulton v. City of Philadelphia.

Correction: An earlier version of this story misidentified the justice who wrote about “a wisp of a decision.” The writer was Justice Samuel A. Alito Jr., and the story has been corrected.

Michelle Boorstein and Ann E. Marimow contributed to this report.