Brief # 166 – Civil Rights
Supreme Court Again Punts On Non – Discrimination v. Religious Beliefs Issue
By Rod Maggay
June 27, 2021
On June 17, 2021 the United States Supreme Court handed down its decision in Fulton v. City of Philadelphia. In a unanimous judgment the Court ruled that Philadelphia’s decision to refuse to contract with Catholic Social Services of Philadelphia (CSS) unless CSS agreed to certify same – sex couples as foster parents violates the Free Exercise Clause of the First Amendment of the U.S. Constitution.
Catholic Social Services is one of many foster care agencies operating in the City of Philadelphia. The City of Philadelphia foster care system contracts with private foster care agencies to help them place children who may be in need of a home. Pennsylvania authorizes private foster care agencies to research families and determine if a foster family is suitable to “provide care, nurturing and supervision” to a child. If a private foster care agency approves than the agency “certifies” the family as a suitable foster family. The private agencies compile their own list of certified foster families and wait for Philadelphia’s Department of Human Services (DHS) to refer a child for foster care. Once a referral is received the private agency decides which family is suitable for the child.
In 2018 the Philadelphia Inquirer ran an article after investigating reports of difficulties that same sex couples had in becoming certified foster families with a number of agencies. Subsequently and in response to the article, the Archdiocese of Philadelphia announced that Catholic Social Services of Philadelphia would no longer consider same sex families as prospective foster parents. In response, the Department of Human Services announced that they would no longer refer children to CSS. CSS filed suit. In Federal District Court, the court denied relief to CSS which the Court of Appeals for the Third Circuit affirmed. The case was then appealed to the U.S. Supreme Court which sided with CSS in a unanimous judgment. LEARN MORE
The Fulton case was closely monitored because it was seen as a potential landmark case that could have set a new rule regarding religious liberty rights and the ability to discriminate based on religious beliefs. The issue of discrimination motivated by religious beliefs has been a simmering issue in the U.S. The Court had recently decided the Masterpiece Cakeshop, Ltd. v. Colorado Civil Rights Commission case but the Court there declined to set a new rule in that case and instead decided the case on very narrow grounds. When Fulton was appealed to the Supreme Court it was believed that the Court may have been ready to address the ability to discriminate based on religious beliefs head on due to the addition of Justice Amy Coney Barrett to the Court (she is viewed as a firm supporter of religion) and the number of cases the Court decided in 2020 supporting religious rights. But this case ended up following Masterpiece Cakeshop in that the case was decided on very narrow grounds. The Court again declined to issue a sweeping rule to govern the ability to discriminate based on religious beliefs issue.
The case turned not on whether there is a constitutional right to discriminate based on religious beliefs (which is what conservatives and religious people wanted) but simply on the wording of a clause in the standard contract that Department of Human Services (DHS) puts in all of its contracts with private foster care agencies. A clause in the contract obligated a private foster care agency to not reject a child or family – to not discriminate – unless it acquired an exemption from a DHS Commissioner. The Court latched on to this wording to find that Philadelphia improperly cut ties with Catholic Social Services because of the discretion it gave to DHS Commissioners to decide if a party may discriminate against a family or not. However, subsequent announcements by the parties involved make clear that the bottom line issue was with the placement of children with LGBQT families and not with terms in the standard contract. The Supreme Court simply decided to avoid addressing the ability to discriminate based on religious beliefs issue again.
The great debate between closely held religious beliefs and whether those beliefs can serve as a basis to discriminate and prevent other citizens from enjoying the benefits of American civic life is one of great importance and one the Court needs to get right for the sake of the LGBQT and minority communities. It is one that needs to be addressed in order to clarify how citizens can conduct their personal lives. What the Supreme Court did in this case was that it left alot of questions that need to be answered. Maybe not today but in the future the Court will have to address the constitutional implications of this very complex issue. LEARN MORE, LEARN MORE
American Civil Liberties Union (ACLU) – infopage on the Fulton v. City of Philadelphia case.
Americans United for Separation of Church and State (AU) – infopage on the Fulton v. City of Philadelphia case.
This brief was compiled by Rod Maggay. If you have comments or want to add the name of your organization to this brief, please contact Rod@USResistnews.org.