I vividly remember exactly where I was when the Obergefell v. Hodges decision was announced in the Summer of 2015. I was sitting in a living room, and the news was on as background noise. I cranked up the volume, and as I heard more of the story, I felt such a sense of victory!  Marriage for same-sex couples had been legalized, and it was nationwide!

However, since 2015, it has become clear that throughout the United States, many laws surrounding families have not adapted to adequately address the rights of same-sex couples. This has been the case both in the family law context (for example, in Ohio, if a same-sex couple is legally married, placing both parents’ names on a birth certificate can be insufficient to establish both partners as legal parents of the child), as well as in the context of preventing discrimination. 

For many LGBTQ+ people, the decision to start a family is the result of diligent planning and a deliberate choice to become parents. One of the options that many families consider is adopting a child, often through a taxpayer-funded adoption agency. 

This past Monday, the Supreme Court decided that it would hear oral arguments in the case of Fulton v. Philadelphia. The Court will be deciding if it is legally permissible for a religiously affiliated adoption organization that is receiving taxpayer funding to turn away same-sex parents. This case is one to watch, as the decision could have significant ramifications for allowing taxpayer-funded organizations to explicitly discriminate against the LGBTQ+ community. 

The Facts

This case arose when the city of Philadelphia’s Department of Human Services cut off a portion of their contract with Catholic Social Services, which is run by the Archdiocese of Philadelphia. In March of 2018, The Philadelphia Inquirer released a news article alleging that Catholic Social Services has a policy of categorically denying the placement of foster children with same-sex couples. 

Though the City ended the funding of Catholic Social Services that is responsible for placing foster children into homes, the City continued to fund other aspects of Catholic Social Services. Following this action, Catholic Social Services sued the City, alleging that the City’s nondiscrimination provisions were being unfairly applied to them and that the City’s actions were in violation of Catholic Social Services’ First Amendment right to freely exercise their religion. 

Catholic Social Services lost their case in the Third Circuit Court of Appeals, which found that the City was neutrally enforcing a nondiscrimination policy that applied equally to everyone. Catholic Social Services then appealed to the Supreme Court. 

Several conflicts similar to the issue presented in this case have come up in multiple states after Obergefell v. Hodges came into effect. Prior to the change in state laws that legalized same-sex marriage, many organizations were able to adopt facially-neutral criteria, such as requiring that all foster parents must be legally married in order to foster. Pre-Obergefell, these policies would result in the exclusion of LBGTQ+ people seeking to foster a child. However, in the post-Obergefell world, foster and adoption organizations that wish to discriminate against LBGTQ+ people no longer have the option of using legal marriage criteria to exclude LGBTQ+ people.

The Argument

The Court will examine several issues in this case. First, the Court will address what Catholic Social Services must demonstrate in order to prevail upon a religious discrimination claim. The Court may also reexamine its holding in Employment Division v. Smith (1990). In this case, the Court held that the government could enforce laws that may impact the religious beliefs of some people, as long as the laws were neutral and applied to everyone in the same way. Finally, the Court will address the specific fact pattern in this case. Catholic Social Services has argued that the government has violated its rights by making its participation in the foster care system contingent upon the organization taking actions against its religious beliefs by requiring that the organization recommend that foster children are placed with same-sex foster parents. The Supreme Court will decide if the state government is permitted to do so. 

The Impact

The decision in this case will be an important one for many reasons. 

First, Catholic Social Services is a religiously affiliated organization, but the support that it receives from the City of Philadelphia is taxpayer-funded. If Catholic Social Services prevails in this case, it could open the doors for many organizations that receive taxpayer funding to legally discriminate against LBGTQ+ people. 

Second, this case is particularly important because the decision could potentially impact government services that reach far beyond the foster care system. If the Plaintiffs are successful and the case is decided in their favor, it sets a precedent that other government contractors may be exempted from state civil rights protections if those civil rights protections are not in accordance with the contractor’s religious beliefs. 

Third, there could be a substantial broadening of religious exemptions under state law if the Plaintiffs are successful in their request that the Supreme Court reconsider its prior holding in Employment Division v. Smith. In Smith, the Supreme Court held that there is no violation of the freedom of religion when the infringement on a religious right is incidental and the law is otherwise valid. If the Court were to overrule Smith, it would create significantly more ground for religious objections to state civil rights law, and it would raise the level of scrutiny with which the Supreme Court would evaluate future religious exemption cases when state law is concerned. A state would need to demonstrate that a law that resulted in the infringement on the religious rights of a state government contractor is necessary to a “compelling state interest”; “narrowly tailored” to achieving this compelling purpose; and that the law uses the “least restrictive means” to achieve the purpose. If state-level non-discrimination protections become subject to this level of scrutiny, it could result in further legal challenges to state nondiscrimination protections and their enforceability. 

Oral arguments in this case will occur in the Supreme Court’s next term this coming Fall.