On November 4, the US Supreme Court will hear oral arguments in the case of Fulton v. City of Philadelphia, a case that will decide whether or not adoption and foster care agencies are legally able to deny service to same-sex couples.
Fulton v. City of Philadelphia is a potentially historic case that concerns Catholic Social Services, an “adoption and welfare agency.” In 2018, the Philadelphia Enquirer published an investigation into the agency, which the city had contracted for the sole purpose of providing foster care services to children in welfare. The investigation found that Catholic Social Services had a long-standing history of refusing to place children with same-sex couples. After the article’s publication, Catholic Social Services lost their contract with the city — which awarded the agency over $1 million in reimbursements the year before — as the anti-LGBTQ+ parent policy violated the contract’s non-discrimination clauses.
However, when Philadelphia announced the cut-off, Catholic Social Services sued, alleging that it was allowed to refuse placement in LGBTQ+ homes for religious reasons under the First Amendment. Prior to the involvement of the Supreme Court, though, Catholic Social Services has not had the upper legal hand. First, a federal judge in Pennsylvania denied a preliminary injunction on the agency’s part. Then, a three-judge panel of the US Court of Appeals for the Third Circuit declined to revisit the case in court, as they unanimously agreed the original decision did not infringe on any rights.
The SCOTUS ruling, which is expected in January, has potential to make a landmark impact on the rights of LGBTQ+ people to adopt and foster. There are currently 11 states with laws that allow faith-based agencies to deny same-sex parents, including Virginia, Oklahoma, and Kansas. There are currently 20 states with no laws that protect LGBTQ+ parents from such discrimination.
It’s no surprise that the Trump administration is staunchly on the side of Catholic Social Services. In a legal brief issued in June by former US Solicitor General Noel Francisco, it was argued that the Supreme Court of Philadelphia “impermissibly discriminated against religious exercise” by attempting to terminate the agency’s contract.
“Governmental action tainted by hostility to religion fails strict scrutiny almost by definition,” read the brief. “This court has never recognized even a legitimate governmental interest — much less a compelling one — that justifies hostility toward religion.”