A Catholic social services agency has asked the U.S. Supreme Court to rule that the agency may, as a religious organization, be exempted from non-discrimination laws and refuse services to LGBTQ clients under the First Amendment.
Catholic Social Services (CSS) in Philadelphia, represented by the right wing Becket Fund for Religious Liberty, filed the petition on Monday. The agency is asking the Supreme Court to rule that it has a constitutional right to not place children with LGBTQ foster or adoptive parents. Federal courts had already ruled in the lawsuit, leading to this escalation, reported the Washington Blade:
“A federal judge in Pennsylvania and the U.S. Third Circuit Court of Appeals denied a preliminary injunction in favor of Catholic [Social Services]. The Third Circuit, which declined to revisit the case ‘en banc’ before the full court, based its decision in part on the 1990 ruling in Employment Division v. Smith, which says states are aren’t required to accommodate otherwise illegal acts in the name of religious liberty under the First Amendment.
“A key component of the Becket Fund petition is reconsideration of the Smith decision. Although the petition insists Smith doesn’t support the Third Circuit decision, it says ‘the propensity of lower courts to read Smith so narrowly is powerful evidence that Smith has confused rather than clarified the law and should be reconsidered.’
“Catholic Social Services also seeks a religious right to refuse placement into LGBT homes in a broader sense under the First Amendment — which could affect not just city contracts, but federal non-discrimination law against anti-LGBT discrimination — asserting the current situation ‘effectively denies CSS a license if it does not speak and act as the government prefers.'”
The lawsuit first arose last year when the City of Philadelphia terminated its contract with CSS because the agency would not serve same-gender couples and was violating the contract’s anti-LGBTQ non-discrimination provisions. The Supreme Court denied CSS’ request for an injunction last year, which had been submitted before the Third Circuit’s decision. Becket Fund lawyers are trying again now that the lower court has ruled against CSS. LGBTQ groups and the American Civil Liberties Union have become involved:
“Leslie Cooper, deputy director of the ACLU LGBT & HIV project, said adoption agencies shouldn’t be able to obtain taxpayer funds and engage in anti-LGBT discrimination under a religious litmus test at the same time.
“‘Catholic Social Services wants to force every state and local government to allow exactly that,’ Cooper said. ‘With more than 400,000 children in the foster care system across the country — a quarter of whom are waiting for a family to adopt them — no family willing and able to open their hearts and home to a child should be rejected.'”
The stakes in this case are fairly high for anti-LGBTQ non-discrimination protections generally given its relationship to related cases before the U.S.’ highest court. The Blade explained:
“A ruling from the Supreme Court on the free exercise claim presented in third question [“3. Whether a government violates the First Amendment by conditioning a religious agency’s ability to participate in the foster care system on taking actions and making statements that directly contradict the agency’s religious beliefs?”] could give justices wriggle room in separate litigation to determine anti-LGBT discrimination is a form of sex discrimination under federal law. Those cases — Bostock v. Clayton County, Zarda v. Altitude Express and EEOC v. Harris Funeral Homes — call on the Supreme Court to clarify whether Title VII of the Civil Rights Act of 1964, which bars employment discrimination on the basis of sex — also applies to cases of anti-LGBT discrimination.
“A ruling from the Supreme Court in favor of the idea Title VII covers LGBT people would make Catholic institutions liable if they deem it necessary to fire a worker for being gay, much like Catholic schools have fired gay teachers for entering into same-sex marriages.
“Conceivably, if this ruling gives pause to justices like U.S. Chief Justice John Roberts and U.S. Associate Justice Brett Kavanaugh — who are Catholic, but could be swing justice on the Title VII — they could find Title VII applies to cases of anti-LGBT discrimination, but also give Catholic institution an out from the decision in the Fulton case by finding they have a First Amendment right to discriminate.”
Adoption rights have been increasingly controversial. Despite more supportive stances held by Catholics in the pews, church leaders routinely seek the route of discrimination. In the United States, church-affiliated social services providers have ended adoption services in Illinois, Massachusetts, New York, and other states, as well as the District of Columbia. Bishops in Oklahoma, Kansas, and a handful of other states have helped pass laws allowing anti-LGBTQ discrimination in adoption and foster care services. Elsewhere, the Missionary Sisters of Charity, the community which Mother Teresa founded, stopped facilitating adoptions in 2015 because they feared single gay people would become parents. And, according to an unconfirmed report from one of Malta’s bishops, Pope Francis was “shocked” in 2014 to find out that same-gender couples could be granted adoption rights in the island nation.
It is already tragic that Catholic agencies and church leaders would discriminate against LGBTQ people who simply wish to provide loving homes to vulnerable children. But this lawsuit involving Catholic Social Services is all the more troublesome because it could be Catholics, plaintiffs and justices alike, who enshrine a broad “right to discriminate” into federal law, even as church teachings against unjust discrimination suggest they should do the very opposite.
—Robert Shine, New Ways Ministry, July 24, 2019