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In the Know: Understanding Fulton v. City of Philadelphia

Today, November 4, the Supreme Court will hear oral arguments in the next pivotal LGBTQ rights case. This case will determine whether a city may exclude private agencies from their taxpayer-funded foster care system because of their refusal to adhere to anti-discrimination policies.  

This case involves two agencies that were hired by the city of Philadelphia to provide foster care to children in the city’s care. These two agencies refused to home children with same-sex couples because they claimed that it would violate their religious beliefs. The city informed the agencies that it must comply with the nondiscrimination requirements in their foster care agency contracts or the city would no longer refer children to those agencies. When the agencies failed to comply, the city stopped referring children to them. Catholic Social Services (CSS) sued the city claiming they have a First Amendment right to opt-out of the nondiscrimination policy. Both the District Court and the Third Circuit Court of Appeals rejected CSS’s arguments that the agencies have a right to discriminate.

Our amicus brief argues that if the court exempts these private agencies from complying with an anti-discrimination policy this will give license to any private entity that offers services to the public to claim exemption by invoking the First Amendment. Anti-discrimination laws are crucial to protecting underrepresented groups including communities of color and the LGBTQ population, and especially those who are both. These laws ensure equal access to taxpayer-funded, publicly provided services and programs regardless of their race, sex, religion, disability, or national origin. Last year the Supreme Court in Bostock held that it was “impossible to discriminate against a person for being [LGBTQ] without discriminating against that individual based on sex.” If the Court rules in CSS’s favor, it would endanger the purpose and effect of anti-discrimination policies.  

The foster care system is already overwhelmed and is in desperate need of caregivers. A coalition of nationally recognized standard-setters for child welfare services are in support of Philadelphia’s anti-discrimination policy. They explain in their amicus brief to the Court that “nearly every major professional organization with a commitment to promoting child welfare has adopted an official position stating that sexual orientation should not be used to categorically exclude individuals from raising children through adoption and/or foster care.” 

LGBTQ couples are seven times more likely to be foster or adoptive parents than non-LGBTQ people, and same-sex people of color are even more likely to be foster parents than white non-LGBTQ people. Studies have shown that LGBTQ people have played a role in providing a pool of potential foster families for children that are harder to place in other homes such as “older children and children with special needs.” This exemption would harm the children who are in the city’s care by removing a large section of the population that has been the most active in the foster care system. This is especially true for children of color, LGBTQ children, and children who are both who are overrepresented in the foster care system. Finding supportive, accepting homes for these children has been identified as an important tool to combat negative outcomes such as depression, suicidality, drug abuse, and post-traumatic stress disorder.  

In the past, there were laws that prevented same-sex couples from adopting children, but the last of these laws were struck down in 2016. As our amicus explains, Philadelphia’s anti-discrimination policy is a requirement for every agency because it “ensures that citizens and taxpayers are not forced to finance private discrimination against themselves through the vehicle of government contracts and it ensures the efficient protection of the interests of children in the city’s care.”  

When a private agency enters a government contract, they are acting on the government’s behalf, and are obligated to adopt, follow, and enforce all the government’s policies when they carry out those functions. Foster care programs make child placement decisions based on the best interests of the child and not an organization’s personally held religious beliefs. If a private entity’s personally held religious beliefs conflict with the government’s anti-discrimination policy, they are not required to seek out a government contract. These private faith-based organizations can continue to promote fostering and support for the foster care system outside of a government contract. 

The consensus is clear, allowing private groups to opt-out of anti-discrimination policies will harm not only the foster care system but will create an opening for more anti-discrimination policies to be undermined by a person, organization, or corporation attempting to invoke the First Amendment.