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High Court’s LGBT Foster Care Case Could Undercut Job Bias Laws

March 10, 2020, 9:34 AM

A U.S. Supreme Court case over a Philadelphia policy that outlaws LGBT discrimination by foster care agencies with city contracts could have sweeping effects on government enforcement of anti-bias laws for the workplace and other sectors, according to some legal observers.

The justices recently decided to tackle Fulton v. Philadelphia, which asks whether a policy that prohibits city contractors from discriminating based on sexual orientation infringes on First Amendment rights. Catholic Social Services says Philadelphia didn’t renew its contract after a newspaper article revealed it wouldn’t work with same-sex couples interested in fostering or adopting children. The religious foster care agency then accused the city of violating its religious rights under the U.S. Constitution.

It’s another example of the clash between religious liberties and LGBT anti-discrimination rights, following the Supreme Court’s decision in Masterpiece Cakeshop, Ltd. v. Colorado Civil Rights Commission, and comes in the wake of rulings like Trinity Lutheran Church of Columbia, Inc. v. Comer that bolster religious protections.

Catholic Social Services asked the justices to revisit 30-year-old precedent governing religious exemptions from “neutral laws of general applicability” that don’t expressly target religion. A high court ruling in favor of the foster agency could undercut government enforcement of anti-discrimination laws in sectors like employment, health care, and housing, some legal scholars say.

The Supreme Court, for example, is expected to rule before July on a trio of cases that would decide whether a federal law bans discrimination on the basis of sexual orientation and gender identity in the workplace. If the court rules that LGBT workers are covered, or Congress amends Title VII of the 1964 Civil Rights Act to expressly protect them, a win for Catholic Social Services in Fulton could undermine those protections, said Chicago-Kent College of Law professor Anthony Michael Kreis.

“It is possible religious employers might attempt to squeeze themselves into a similar constitutional exemption from employment anti-discrimination requirements under Title VII if and when LGBTQ workers are protected by it,” he said. “There will be all of these opportunities for people who want to discriminate to now advance these arguments in court, whereas they would have been kicked out before.”

Twenty-one states, the District of Columbia, and Puerto Rico have laws that expressly prohibit workplace discrimination on the basis of gender identity and sexual orientation, according to a Bloomberg Law analysis. Wisconsin bans only sexual orientation bias.

Religious freedom advocates say the high court’s eventual ruling in Fulton won’t have as wide an impact as some fear.

Fulton is more limited compared with the Title VII cases, said Nick Reaves, counsel for the Becket Fund for Religious Liberty, which represents Catholic Social Services. Those would apply to every employer, he said, while the foster care case is narrower.

Issues at Stake

The high court will answer whether Philadelphia violated the First Amendment in requiring foster care agencies to abide by a general nondiscrimination ordinance that directly contradicts the agencies’ religious beliefs.

Catholic Social Services also wants the court to revisit Employment Division v. Smith, a 1990 case that held that the First Amendment’s free exercise clause doesn’t prohibit states from applying neutral laws of general applicability to bar actions motivated by religion. That case eventually triggered congressional passage of the 1993 Religious Freedom Restoration Act, which prohibits the federal government from burdening a person’s free exercise of religion, even if that burden stems from a neutral, generally applicable law.

If the agency is successful in Fulton, the exemptions available to religious employers could be broader than those under RFRA, rendering workplace anti-discrimination requirements moot with a “death by a thousand cuts,” according to Kreis. He added that it’s unsettled whether RFRA’s exemptions would apply to Title VII claims because there’s a split among the federal appeals courts on the issue.

But Reaves said anti-discrimination and religious rights can co-exist.

“Sometimes people paint this case and other cases as raising a conflict between two different rights. I think it can be a win-win,” Reaves said. “I think there’s room for same-sex couples to be foster parents and for Catholic organizations to maintain their beliefs.”

Leslie Cooper, deputy director of the American Civil Liberties Union’s LGBT & HIV Project, said that because it’s a government service in question with this lawsuit, the stakes are higher. Cooper submitted the ACLU’s brief supporting Philadelphia.

“Here we’re talking about an organization that accepts tax dollars to operate a government service. They seek a constitutional right to then exclude participants from that program,” Cooper said. “The agency’s claim is based on a claimed right to religious liberty. To me, that is the opposite of religious freedom.”

Wider Implications

Cooper also said that if the court accepts Catholic Social Service’s arguments, any request for a religious exemption from a nondiscrimination regulation could be fair game for the courts.

The Supreme Court’s decision to take up the case against Philadelphia isn’t shocking, said Selendy & Gay partner David Flugman, considering federal appeals courts are split on the issue, but “chipping away” at decades-old precedent could have unintended consequences.

“Obviously, religious free exercise is a core value of this country, but there are also plenty of other things,” he said. “When you try to rebalance or rejigger how those various constitutional protections lay against each other, there can certainly be broader implications.”

Those implications could target LGBT people in particular, Kreis said, in contexts like government contracting and housing—but then also could extend to other protected classes of individuals.

“Can the religious arguments that are being proffered here be used to target other groups?” he said.

Reaves, however, said Catholic Social Services’ argument is narrower.

“This isn’t like going to a coffee shop as a same-sex couple and being turned down,” he said. “This is like going to a Catholic church and asking the Catholic Church to perform a same-sex wedding. I think people of goodwill on both sides of this debate can realize that.”

Lawmakers Speak Out

The lawsuit has caught the attention of both Republican and Democratic members of Congress. Rep. Sean Patrick Maloney (D-N.Y.) has adopted children with his partner, and spoken out against Catholic Social Services’ stance against working with LGBT couples.

“The point is that when you allow people to discriminate against those couples, you deprive children of good moms, dads, and families,” he said at a House Oversight Committee hearing on Feb. 27. “You keep having them, and we’ll keep raising them.”

Rep. Mike Kelly (R-Pa.) disagreed, saying it’s unfair to ostracize faith-based agencies.

“Why would you tell the faith-based community that you’re not allowed to do that anymore, even if you started it?” he said at the same hearing.

Democratic Rep. Joseph Kennedy III (Mass.) said that religious liberties have become “a sword to marginalize vulnerable communities,” instead of their intent as a shield.

“The denial of services based on the central tenet of who the recipient is of those services constitutes as discrimination,” he said.

To contact the reporter on this story: Paige Smith in Washington at

To contact the editors responsible for this story: Karl Hardy at; Jay-Anne B. Casuga at