In 2018, city officials in Philadelphia decided to exclude Catholic Social Services, which refuses to work with LGBTQ couples, from participating in its foster-care system. The agency sued, claiming religious discrimination, but the United States Court of Appeals for the Third Circuit unanimously ruled against the agency, citing the need to comply with nondiscrimination policies.
The case, Fulton v. City of Philadelphia, follows a 2018 Supreme Court decision regarding a Colorado baker who refused to make a wedding cake for a same-sex couple. In that case, the court narrowly ruled that the baker bad been discriminated against, on religious grounds, by the state's civil rights commission. It did not decide the broader issue: whether an entity can be exempt from local non-discrimination ordinances on the basis of religious freedom.
The court — whose ideological center has shifted to the right since the addition of Justice Brett Kavanaugh in fall 2018 — may choose to do so now. Advocates quickly called on the court to consider the potential impact on the more than 400,000 children currently in the foster care system:
"We already have a severe shortage of foster families willing and able to open their hearts and homes to these children," said Leslie Cooper, deputy director of the ACLU LGBT & HIV Project. "Allowing foster care agencies to exclude qualified families based on religious requirements that have nothing to do with the ability to care for a child such as their sexual orientation or faith would make it even worse. We can't afford to have loving families turned away or deterred by the risk of discrimination."
"It is unconscionable to turn away prospective foster and adoptive families because they are LGBTQ, religious minorities, or for any other reason unrelated to their capacity to love and care for children," said HRC President Alphonso David. "We reject the suggestion that taxpayer-funded child welfare services should be allowed to put discrimination over a child's best interest. This case could also have implications for religious refusals that go far beyond child welfare. The Supreme Court must make it clear that freedom of religion does not include using taxpayer funds to further marginalize vulnerable communities."
The court may choose to override a 1990 decision, Employment Division v. Smith, which created the current standard for carving out religious exemptions. In that case, the court ruled that laws that target a specific faith, or express hostility towards certain beliefs, are unconstitutional — but this standard has long been abhorred by religious conservatives, who think it doesn't offer enough protections for religions. If the court does overrule Smith, it could have far-ranging consequences. " As noted on Slate, "it would allow anyone to demand a carve-out from laws that go against their religion, unless those laws are 'narrowly tailored' to serve a 'compelling government interest.'"
The four members of the court's conservative wing — Thomas, Alito, Gorsuch, and Kavanaugh —have all signaled an openness to reconsider Smith. The ruling's fate, then, likely rests in the hands of the court's new swing vote, Chief Justice Roberts.
For more, read the full article on Slate.