The Supreme Court could be on the verge of making a landmark decision that could affect the near 400,000 children in foster care in the United States.
The decision the court makes could have major implications for LGBTQ rights, religious liberty and nondiscrimination laws in the nation, Time Magazine reported.
The case, Fulton v. City of Philadelphia, was sparked when the city said it would no longer contract with a faith-based agency, Catholic Social Services (CSS), to provide foster services after a 2018 Philadelphia Inquirer article revealed that it would not certify same-sex couples to be foster parents. (CSS also does not certify unmarried couples.) In response, two foster mothers—Sharonell Fulton and Toni Simms-Busch—and the CSS sued the city, arguing that severing the contract violated their religious freedom. After losing in two lower courts, they petitioned the Supreme Court, which first agreed to hear the case in February 2020.
The landmark 1990 court ruling on Employment Division v. Smith—written by conservative Justice Antonin Scalia—said Americans cannot have exemptions to laws on religious grounds as long as those laws are neutral and generally applicable to everybody. Anti-discrimination laws have long been thought of as meeting that standard, says NeJamie. But the Fulton plaintiffs are arguing that the city’s anti-discrimination law is neither neutral nor equally applicable, and are asking the court to re-examine Smith. Such a reconsideration would send shockwaves through the religious and civil rights communities.
The question of who gets to be a parent is not something the Supreme Court often weighs in on, but this case is in part about the tricky legal territory in which many states find themselves: Same-sex marriage has been legal nationwide for nearly six years, but many religious organizations still regard it as unacceptable and are therefore unwilling to place children in LGBTQ homes. Some 11 states have introduced workaround local laws that allow faith-based organizations to decline to work with same sex couples, but that leaves those states open to lawsuits from civil liberties groups. Cities and states that do not allow this religious exemption are also left open to being sued, as Philadelphia has been, on religious liberty grounds. Ten states filed an amicus brief asking the court to consider the case.
This case could change many things for LGBTQ individuals who want to foster kids.
“LGBTQ families are no different from other families,” John Freml, the father of a 5-year-old son, Riley, and a 7-year-old daughter, Jordan, said. “We have the same desire to connect and to love. It’s heartbreaking and unjust to watch faith-based agencies refuse to place children with families like mine, especially given the large numbers of children who need loving homes. My prayer is that the Supreme Court will recognize that any agency that discriminates against same-sex couples has no right to taxpayer funding.”
University of Nevada law professor Leslie Griffin was one of around 1,000 LGBTQ advocates who filed amicus briefs in the case.
“In my mind discrimination is discrimination. It’s not a good thing and it’s not something that the laws of the United States should uphold,” she during a panel discussion. “When people were debating interracial marriage, a lot of religions said you couldn’t have interracial marriage. The old religions supported slavery and were not for racial equality – and the courts gradually moved away from that.”
The decision of the court is set to come sometime in the near future, as many speculated that it would have come last week.
Will agencies that place foster children with families be allowed to practice their religious freedom? This could be Supreme Court Justice Amy Coney Barrett’s first major rulin.