Last Updated: June 8, 2020
Table of Contents
In May 2018, Catholic Social Services (“CSS”), a faith-based foster care agency filed a lawsuit against the City of Philadelphia with whom it had a contract to provide public child welfare services.
Despite the nondiscrimination provision in the City’s contract with CSS (and all other contractors), CSS refused to license same-sex couples to be foster parents based on religious objections.
When the City told CSS that it had to comply with the nondiscrimination requirement or its contract would not be renewed, CSS sued the City, claiming that requiring CSS to abide by the generally applicable nondiscrimination requirement for contractors violated the free exercise of religion, even though CSS chooses to be a contractor and accept taxpayer funds to provide the public service of child welfare. The federal trial court and federal appeals court rejected CSS’s argument and ruled for the City, finding that CSS’s religious Free Exercise rights were not violated. CSS appealed to the United States Supreme Court, and in February 2020, the Court agreed to take the case. Oral argument is expected to be in the fall of 2020.
- Who brought the lawsuit (Plaintiff/Appellant/Petitioner): Catholic Social Services
- Who the lawsuit is against (Defendant/Appellee/Respondent): City of Philadelphia
- Other parties (“Intervenors”), represented by the ACLU, who support the City’s right to require all of its contracted foster care agencies to license all qualified families:
- Support Center for Child Advocates
- Philadelphia Family Pride
- 05/17/2018: CSS sued the City of Philadelphia in the U.S. District Court for the Eastern District of Pennsylvania
- 06/07/2018: CSS filed for a preliminary injunction, asking the Court to require the City to continue its contract with the City while the case is decided
- 07/13/2018: District Court denied the preliminary injunction, ruling that CSS did not have a right to exclude same-sex couples
- 07/16/2018: CSS filed a notice to appeal the District Court’s decision
- 07/16/2018: CSS filed an Emergency Injunction with the U.S. Court of Appeals for the Third Circuit, asking the Court to force the City to continue referring cases to CSS while the appeal is pending
- 07/27/18: The Third Circuit denied the emergency injunction.
- 07/31/2018: CSS filed an Emergency Application for Injunctive Relief with the U.S. Supreme Court, asking that Court to force the City to continue to refer cases to CSS during the appeal
- 08/30/2018: U.S. Supreme Court denied the Emergency Application (with Justice Thomas, Alito, and Gorsuch stating they would have granted it)
- 04/22/19: U.S Court of Appeals for the Third Court upheld the District Court’s opinion, ruling that the City is entitled to require taxpayer-funded child welfare agencies that it contracts with to abide by nondiscrimination requirements.
- 07/22/19: CSS filed appeal with U.S. Supreme Court
- 02/24/20: U.S. Supreme Court granted the appeal and will hear the case in the Fall of 2020
History of the Case
In March 2018, the City of Philadelphia learned that two of the agencies it contracted with to provide foster care services to children in the public child welfare system were refusing to license same-sex couples to be foster parents based on the agencies’ religious beliefs. The City’s contracts with the agencies incorporate the Philadelphia Fair Practices Ordinance, which prohibits discrimination on the basis of sex, sexual orientation, gender identity, and marital status.
When the City told the agencies that it would not renew their contracts unless they start abiding by its nondiscrimination requirements, one of the agencies agreed to stop discriminating. The other – Catholic Social Services (CSS) – refused to comply and sued the City. In the lawsuit, CSS claimed, among other things, that it had a First Amendment right to continue its taxpayer-funded contracted work even though it refused to license same-sex couples as foster parents in violation of the contract.
In a ruling on July 13, 2018, the district court held that CSS does not have a right to discriminate against prospective foster parents based on its religious beliefs. The district court found that it was permissible for the City to prohibit discrimination by its contract agencies, affirming the City’s interest in ensuring a diverse and broad pool of foster parents and caregivers and in ensuring that taxpaying citizens – whose taxpayer dollars fund these contracts – are not denied access to the services provided by the contracts.
CSS appealed to decision to the U.S. Court of Appeals for the Third Circuit. On April 22, 2019, the Third Circuit rejected CSS’ argument and affirmed the district court’s ruling. The Third Circuit explained that religious beliefs are always protected, but religiously motivated conduct does not get exemptions from general, neutrally applied legal requirements such as the City’s general nondiscrimination requirement.
Where We Are Now
CSS appealed the Third Circuit’s decision to the U.S. Supreme Court, and in February 2020, the Supreme Court agreed to hear the case. The questions before the Court (as written by CSS) are:
- Whether free exercise plaintiffs can only succeed by proving a particular type of discrimination claim — namely that the government would allow the same conduct by someone who held different religious views — as two circuits have held, or whether courts must consider other evidence that a law is not neutral and generally applicable, as six circuits have held?
- Whether Employment Division v. Smith should be revisited?
- Whether a government violates the First Amendment by conditioning a religious agency’s ability to participate in the foster care system on taking actions and making statements that directly contradict the agency’s religious beliefs?
Briefs in the Supreme Court Case
- The brief by Catholic Social Services (the Petitioner) was filed on May 27, 2020.
- Briefs by those supporting CSS were due on June 3, 2020 (a total of 34 such briefs were filed).
- The brief by the City of Philadelphia (the Respondent) is due by August 13, 2020.
- Briefs by those supporting the City of Philadelphia – such as Family Equality – are due on August 20, 2020.
It is noteworthy that the Trump Administration’s Department of Justice filed a brief in support of the Catholic Social Services. In that brief, Solicitor General Noel Francisco says that “the United States has a substantial interest in the preservation of the free exercise of religion. It also has a substantial interest in the enforcement of rules prohibiting discrimination by government contractors.”
The framing of this statement of interest makes clear that the Trump Administration views its interest in prohibiting discrimination as a mere afterthought to its interest in preserving the free exercise of religion. The brief contends, contrary to the findings of fact at the trial court, that the Philadelphia’s nondiscrimination policy exhibits “hostility toward religion”.
This brief by the Trump Administration argues that child placing agencies should have a constitutional right to turn away people, including LGBTQ people and same-sex couples, if they fail to meet an agency’s religious litmus test.
Family Equality is currently engaged in developing our Amicus Brief in this case and looks forward to explaining to the Court how such discrimination harms prospective parents and youth in care (see more detail below).
What’s At Stake?
Many states and localities across the country that contract with private agencies to provide services in the public child welfare system have nondiscrimination requirements similar to the City of Philadelphia’s. Agencies voluntarily enter into these contracts and are paid taxpayer dollars to carry out the state’s duty to care for and provide homes for children whom the state has removed from their parents or guardians.
Allowing agencies to “opt out” of contractual requirements based upon their religious beliefs could have dire consequences for the 437,000 children in foster care across the country. There is a shortage of homes for these children, and allowing agencies to turn away qualified, loving families because they do not meet the agency’s religious test only exacerbates the problem.
Moreover, a broader decision holding that religious entities are constitutionally entitled to contract with the government but then refuse to comply with the parts of the contract to which they object would have a profound impact on all government contracting.
Family Equality’s Role
On October 4, 2018, Family Equality filed a “friend of the court” (or amicus curiae) brief in federal appellate court to support the City of Philadelphia. Family Equality was joined in the brief by COLAGE, and was represented by our pro bono counsel Bryan Cave Leighton Paisner, LLP.
Family Equality’s contribution to this case is our ability to capture the impact and harm of anti-LGBTQ discrimination through the voices of the people who experience it. So, our brief presented the perspectives of the people directly affected by discriminatory policies like the one CSS seeks to justify, including LGBTQ adults who have sought to foster, young people who were formerly in foster care, and those who have been able to successfully foster and adopt when nondiscrimination protections and affirming policies are in place.
The narratives we provided powerfully demonstrate the harmful impact of discriminatory policies, providing numerous examples of prospective parents who, in the face of discrimination, abandoned their efforts to foster and adopt children and those whose efforts were unnecessarily delayed while children were waiting for a home.
We also elevated the voices of young people with lived experience in foster care who courageously spoke to the consequences of placement in group homes or with families not well-matched to their needs, reflecting the importance of a large and diverse pool of prospective parents. Their voices, which too often go unheard, are at the heart of this case because children who “age out” of foster care without a forever family are those who are harmed the most by discriminatory policies.
Turning away families shrinks the pool of available placements, and those who age out of foster care not only begin adulthood on their own without the guidance, support, and stability of parents, but they are more likely to experience poverty, homelessness, incarceration, and early parenthood.