Within the next few days, the Supreme Court is expected to release a ruling on a case that could have landmark effects for the nearly half a million children in the foster care system across the United States and LGTBQ+ people, and parents, more broadly.
The decision, based on the case Fulton v. City of Philadelphia, is born out of a case where the city of Philadelphia stopped contracting a religious-based foster care center, Catholic Social Services after they discovered the agency would not approve LGBTQ+ couples to be foster parents. In summary, the city said that CSS was violating their policy that bars discrimination based on sexual orientation; the CSS is saying that the city of Philadelphia is violating their first-Amendment right to freedom of religion.
Update: As of June 17, the Supreme Court ruled in favor of Catholic Social Services and against the city of Philadelphia. However, the ruling was so narrow that most experts believe that it won’t have any implications for adoption services and the LGBTQ+ community outside of the city of Philadelphia. The case looks like a loss for the LGBTQ+ community in the city of brotherly love, and the CSS won largely due to a document that only applies to that city, limiting a broader ruling on the rights of gay, lesbian, or transgender parents.
Here’s What’s at Stake
What’s at stake is not just the 6,000 kids in foster care in Philadelphia, who are victims of an overburdened system and deserve a loving and safe home to grow and thrive in.
What’s at stake is not just prospective gay or lesbian parents of these kids, who across the country are routinely subjected to discrimination by religious foster care agencies and struggle to be able to adopt (a key point given that, per TIME, about 3% of same-sex couples are raising a foster kid and more than 21% raising an adopted kid, which means they are seven times more likely than different-sex couples to raise adopted children).
The case, if ruled broadly, could affect LGBTQ+ rights across the country in many contexts, and could have a chilling effect on slow decades of advancement of the rights of gay, lesbian, and trans citizens.
Here’s what you need to know.
The Case is About Foster Kids. How Could it Affect Them?
The case began in 2018 when the city of Philadelphia learned that two agencies the city had foster agency contracts with would not accept gay couples as foster parents.
The city of Philadelphia, which has a non-discrimination requirement and policy, informed those agencies they wouldn’t refer children to their agencies unless the two services — Catholic Social Services and another, Bethany Christian Services, an agency that complied with the requests — stopped discriminating against gay couples. The CSS refused and sued the city.
(Bethany Christian Services faced severe backlash from their community when they complied with the city of Philadelphia’s requests. In response, the CEO wrote that they faced a choice to “continue caring for hurting children who need a safe family… [we] will not walk away from children who need us.”)
The case went through several courts and is now at the highest court in the land. And it’s not just about the rights of LGBTQ+ folks, though that is paramount to the case.
It’s also about the wellbeing of the hundreds of thousands of kids who are in foster care in the United States, an overburdened, under-funded service that is struggling. The opioid crisis and the ongoing COVID-19 pandemic have only made the strain on the foster care system more severe, and foster services need all of the willing and able parents they can get. But some religious adoption services have said they will close their doors if they are ordered to help people they don’t agree with.
Beyond that, it’s a matter of constitutional rights.
While the CSS — and other religious-based foster agencies — may say that it is their first amendment right to not work with gay couples who are looking to adopt children, there is of course established precedent that rules that religious folks and services can’t violate a “neutral law of general applicability,” AKA a law that applies to all and does not favor (or harm) people based on their beliefs (or their lack of beliefs.)
If the CSS won this case, the precedent could be overturned, and the ruling could be used against LGTBQ+ or any of the US’s most vulnerable populations.
“Essentially [CSS] is claiming that there is a right to opt out of nondiscrimination requirements that conflict with your religious beliefs,” ACLU’s Leslie Cooper told TIME. “…The implications, if that argument is accepted, are vast… it would upend civil rights protections as we know them.”
What Could It Mean If the City of Philadelphia (and LGTBQ+ Parents) Lose This Case?
In the “best-case” scenario, per TIME’s analysis, a ruling against LGTBQ+ parents, one that legitimizes discrimination based on religious beliefs, would only apply to the spheres of adoption and fostering nationwide. It could mean that gay and lesbian foster and adoptive parents could effectively be shut out of one of their few paths to parenting children, based on where they live and the adoption services that are available to them.
In the worst-case scenario, the Supreme Court rules really broadly on this case, and in sum, LGTBQ+ Americans (and even Americans who are people of color or have different religious beliefs than the service provider) would legally be able to face and have no legal protection against, discrimination from all sorts of private contractors that work with the government.
Any government service in part provided by private contractors could legally discriminate against vulnerable Americans, legal experts warn.
On the other hand, if the Supreme Court rules in favor of the City of Philadelphia, religious-based organizations could simply choose to close unless they have the freedom to discriminate against LGBTQ+ adoptees and foster parents based on their religious beliefs.
And ultimately, the lives and wellbeing of children, at least 6,000 of them, but nearly half a million of them nationwide, are at stake.