“Supreme Court Backs Catholic Agency in Case on Gay Rights and Foster Care,” read the New York Times headline on June 17. It was a case that parties on both sides of the issue had been watching closely, to see how the Supreme Court of the United States (SCOTUS), with a new 6-3 conservative majority, would rule on the question of LGBTQ rights versus “religious freedom”—the idea that private religious groups should be exempt from nondiscrimination laws on the basis of conscience. This issue has been coming up a lot in recent years, as both organizations and individuals (remember the anti-gay wedding-cake maker? The Kentucky county clerk who refused to issue same-sex marriage licenses?) push back on the idea that they have to recognize legal same-sex marriage and other LGBTQ protections if it doesn’t comport with their religious or moral beliefs.
In this instance, Fulton v. City of Philadelphia, the Supreme Court ruled that Catholic Social Services, one of many private contractors with the city of Philadelphia connecting foster parents with children in the city’s care, was allowed to deny same-sex married couples the right to take in foster kids, in keeping with Catholic doctrine opposing gay marriage. In other words, SCOTUS upheld discrimination, saying that the Catholic agency did not have to obey Philadelphia law saying that contractors with the city could not discriminate.
But wait. The ruling was unanimous, meaning that the court’s three remaining liberals—Stephen G. Breyer, Sonia Sotomayor, and Elena Kagan—voted the same way as its conservative majority.
Why? Because—explains attorney Currey Cook of the LGBTQ rights group Lambda Legal, which filed a brief in the case on behalf of the city of Philadelphia—SCOTUS chose to rule very narrowly (specific to this case) that because the city of Philly already allowed private agencies some leeway to turn foster parents or even children away, the city had to allow it in this case. For example, foster parents can be turned away if they do not have a home that could accompany a certain child’s disability.
That sounds like tortured logic on behalf of discrimination—in fact, to get around the ruling, all Philly would have to do is tweak its policy to allow for no denials, ever. But the good side of it, as LGBTQ rights go, is that this new, conservative-leaning SCOTUS delayed ruling on the larger question of whether entities are broadly allowed to deny LGBTQ people rights on religious or moral grounds.
“SCOTUS did not grant a sweeping right for organizations to use religion as a basis for discrimination,” Cook says, which he acknowledges is a good thing. Though, he cautions, “It’s still a harmful ruling [for LGBTQ people] because in this instance, it did permit Catholic Social Services to turn away same-sex couples.” Yes, he says, such couples can go to other agencies that contract with the city and don’t discriminate on the basis of LGBTQ identity. But that’s still discrimination in the form of “separate but equal.”
Despite that, says Cook, it’s interesting to note that even the court’s newest member, Amy Coney Barrett—a conservative Catholic whom many assumed would rule broadly on the side of religious entities—endorsed narrow, case-specific language in the ruling. “You saw her thinking out loud, ‘Hmmm, I don’t know [if it’s such a good idea that we] get rid of the Smith rule,’” says Cook. He is referring to the 1990 SCOTUS ruling on Employment Division v. Smith, which generally allows governments to make and enforce nondiscrimination laws in contracts with private agencies.
So What Happens Now?
The larger legal question of whether religious entities can broadly discriminate against LGBTQ people remains up in the air, says Cook. He points to two cases bearing the question—Marouf v. Azar and Rogers v. HHS, both involving same-sex couples turned away from foster parenting by religious agencies contracting with the government—that are currently active in the lower courts, with Lambda Legal, a national organization committed to achieving full recognition of the civil rights of LGBTQ people, arguing on behalf of the LGBTQ parties.
One or both cases could eventually come before SCOTUS, giving the highest bench another opportunity to take up the big question. But given the court’s current conservative bent, perhaps it’s best they don’t. In recent years, the idea of “religious freedom” in the face of LGBTQ protection laws has become a rallying cry for conservative groups that want SCOTUS to rule more definitively than it just did.
Same-sex foster parents versus religious foster agencies isn’t the only LGBTQ legal issue playing out in the courts currently. Lambda Legal has joined the American Civil Liberties Union (ACLU) in suing West Virginia over its new law banning transgender schoolgirls from playing on girls’ teams. The ACLU has also brought a case against Arkansas’ new law making it illegal for providers to give trans kids gender-affirming health care, such as puberty blockers. (In recent years, several states have pushed or even passed such anti-trans laws, which trans advocates have been working overtime to push back.)
According to Cook, it all shows that despite a SCOTUS ruling last year that affirmed workplace antidiscrimination protections for LGBTQ people, there’s still work left to be done. Some of the unanswered questions from this latest SCOTUS case could be resolved by the Equality Act, which would write sexual orientation and gender identity into the 1964 Civil Rights Act and extend protections in housing and public accommodations.
“Passage of the Equality Act is so important,” says Cook, “because there are still gaps in LGBTQ protections that need to be filled.” But alongside a raft of other liberal legislation that has already passed in the House, the Equality Act has hit a wall in the Senate, where it has basically no Republican support, nor even the support of Democratic dream-buster Sen. Joe Manchin, whose all-important vote brings Dems to reaching 50, allowing Vice President Harris to be the tie-breaker.
As with all that other liberal legislation, Senate Democrats will have to find those magical 10 Republican votes or blow up the filibuster to make those votes unnecessary. Stay tuned.