The Catholic agency said the city’s policy violated its right to free exercise of religion. But a district court disagreed, and the U.S. Court of Appeals for the 3rd Circuit turned down the agency’s request that it be allowed to remain in the city’s program while the case proceeded on appeal.
The agency then made the same request to the Supreme Court, but it declined to get involved without stating a reason. Three justices — Clarence Thomas, Samuel A. Alito Jr. and Neil M. Gorsuch — said they would have granted the agency’s request.
But it requires five votes to grant such an intervention.
The case provided another example of the increasing amount of litigation that pits religious beliefs against government anti-discrimination laws.
The city said it is well within its rights to do business only with entities that abide with its rules. “CSS instead seeks its own constitutional right: a constitutional right to apply for a contract paid for by government funds, and then unilaterally rewrite the contract,” the city said in a brief to the court.
But the Catholic agency said the city was forfeiting homes for foster children with no good reason. “The city is closing Catholic’s foster care program over a hypothetical question: if a same-sex couple approached a Catholic agency seeking a written opinion on their family relationships, could the Catholic Church endorse their unions in writing?” it said. The agency said same-sex couples could work with other agencies that contract with the city.
Because it is still active in the appeals court, the merits of the case could still return to the Supreme Court. It is Fulton v. City of Philadelphia.