by Ann Montague
Today’s unanimous ruling (Fulton V The City of Philadelphia) states Philadelphia must allow a “religious exception” to their non discrimination law. This is a setback for gays and lesbians seeking to be foster parents. The court ignored the fact that Catholic Social Services (CSS) is funded by public money.
For many years church based charities have de-emphasized private fund raising and instead rely on state or municipal contracts. But now they are claiming it is their right to ignore the non discrimination requirement of their contracts and maintain their right to discriminate on the basis of sexual orientation. CSS claim a “religious liberty interest”. They say that the churches that sponsor them (but do not fund them) consider homosexuality a sin. Therefore they will not consider gay men or lesbians as foster parents. The city of Philadelphia stopped placements to CSS in 2018 because they were violating the non discrimination requirement in their contract.
Previously the Third Circuit Court had unanimously ruled against CSS saying that the city is entitled to require compliance with non discrimination policies. They said that CSS is not entitled to rewrite government contracts to eliminate anti discrimination clauses.
The unanimous Supreme Court decision requires the City of Philadelphia to renew its contract with CSS.
The National Association of Social Workers and the Child Welfare League of America submitted a brief to the court, “A diversity of foster and adoptive families is needed to ensure all children find permanent loving parents and gay and lesbian parents are essential partners in this effort.”
CSS wants continued public funding. But it is the public agency that has official custody of the children and this is why the state has a non discrimination clause in their legal contract.
The Williams Institute at UCLA states that there is a critical shortage of adoptive parents and gay people in the US make up an important number. Same sex parents are 7 times more likely than heterosexual couples to have an adopted or foster child.
In addition this discrimination not only hurts prospective parents. Most gay men and lesbians accept special needs children and will provide foster care for older children who are LGBTQ.
Some people have expressed concern that this decision would start to chip away at marriage equality. But the issues of adoption and foster care by gay and lesbian individuals as well as couples had been happening for decades before same sex marriage was legal. There was a surge in the numbers as the gay community stepped up and were willing to adopt hard to place infants and children during the height of the AIDS epidemic. There were no complaints at that time as no one else seemed to care for these at risk children.
Silence About This Case Was Deafening
June is Pride Month. It is also generally the month when important Supreme Court decisions are announced. Generally, whenever there is a decision that will effect the LGBTQ community there is at least a token rally or at least a presence outside the court. This may seem minimal. It is not a mass mobilization but it makes a statement that we are watching. Those who are victims of the Supreme Court will not be silent.
This case was a perfect one for a united community to stand together. While the immediate victims are gay men and lesbians seeking to be foster parents, all of us are harmed because who will take in the LGBTQ children if not us?
Not A Broad Decision?
Some in the legal community take heart in saying it is not a broad decision. It is not that bad. It is true that CSS wanted a wide ranging decision that gave religious organizations the right to violate any and all non discrimination laws and policies. That did not happen but this decision will only embolden more such cases. They will come and next time let us unite and mobilize our numbers.