by J. Ryann Peyton

Ryann Peyton is a litigator and a seasoned consultant and advocate on professionalism, diversity, and equity in the legal field. Ryann's legal practice is focused on civil litigation with an emphasis on LGBT families and civil rights. Ryann earned their law degree from the University of St. Thomas School of Law and holds an LLM and undergraduate degree from the University of Denver.

In the past five years, the United States Supreme Court has ruled that the Constitution guarantees LGBTQ individuals the right to important protections including the right to same-sex marriage[1] and the protection of federal employment discrimination laws[2]. On November 4th, the Court will hear oral argument in a clash between religious freedom and laws and policies that protect LGBTQ rights in a case known as Fulton v. City of Philadelphia.

The question of how to balance sincere religious beliefs against the government’s interest in protecting LGBTQ rights is one that came before the Court through a well-known Colorado wedding cake dispute. In 2018, the justices confronted this question in the case of a Colorado baker who refused to create a custom cake for a same-sex couple because he believed that doing so would violate his religious beliefs. The justices ultimately issued a narrow ruling for the baker, holding that the state administrative agency that had ruled against him had treated him unfairly by being too hostile to his religious beliefs[3]. The justices did not decide, however, whether requiring the baker to bake a cake for a same-sex couple would violate his right to freedom of speech under the First Amendment.

In Fulton, a similar First Amendment question returns to the Supreme Court in a lawsuit brought by Catholic Social Services (CSS), a foster-care agency associated with the Archdiocese of Philadelphia. During the 50 years that it has worked with the city to place foster children, CSS has worked with thousands of foster parents. CSS utilizes home studies to vet and certify prospective foster parents. These certifications are effectively endorsements of a foster family and CSS’ Catholic beliefs preclude it from certifying the spouse or partner of a foster parent if the couple is a married same-sex couple.

The dispute now before the Supreme Court began after Philadelphia city officials read a March 13, 2018, article in a Philadelphia newspaper about a complaint against a different foster-care agency. The article also indicated that the Archdiocese of Philadelphia and CSS follow the Catholic Church’s teachings on marriage, which prohibits them from providing foster parent certifications for same-sex couples.

Two days later, the city council passed a resolution that instructed the Department of Human Services, which is tasked with finding a home for foster children, to change its contracting practices. The resolution condemned “discrimination that occurs under the guise of religious freedom” and informed the foster placement agencies that it would no longer refer children to them unless they agreed to comply with the Philadelphia Fair Practices Ordinance, which prohibits discrimination on the basis of sex, sexual orientation, gender identity, and marital status and is a requirement in all foster care agency contracts. One of the agencies agreed to do so. The other, CSS, sued the city, claiming the Constitution gives it the right to opt out of the nondiscrimination requirement in the contract.

CSS, and foster parents Sharonell Fulton and Toni Lynn Simms-Busch, filed a lawsuit in May 2018, asking a federal court to require DHS to resume referrals to CSS. They argued that the city’s actions violated several different provisions of the First Amendment: the free exercise clause, which protects religious belief and expression; the establishment clause, which (among other things) bars the government from favoring non-religion over religion; and the free speech clause.

The district court denied CSS’s request, concluding that the city’s policy was a neutral policy under the court’s 1990 decision in Employment Division v. Smith, which held that government actions do not violate the Constitution’s free exercise clause as long as they are neutral and apply to everyone.[4] The U.S. Court of Appeals for the 3rd Circuit affirmed. It found no sign that DHS had discriminated against CSS because of its religious beliefs. CSS then went to the Supreme Court, and the justices agreed to weigh in.


Implications for the LGBTQ Community and Others

Two Philadelphia-area nonprofit groups entered the case to defend the city’s policy: the Support Center for Child Advocates, which provides legal assistance and advocacy for abused and neglected children in the Philadelphia area, and Philadelphia Family Pride, a group for LGBTQ-led families in the area. Represented by the American Civil Liberties Union (ACLU), they maintain that CSS has a choice. If it doesn’t like the terms of the contract that the city is offering, it can decline to enter into the contract at all.

Allowing agencies to “opt out” of contractual requirements based upon their religious beliefs could have dire consequences for the 437,000 children in foster care across the country. There is a shortage of homes for these children, and allowing agencies to turn away qualified, loving families because they do not meet the agency’s religious test only exacerbates the problem. Moreover, a broader decision holding that religious entities are constitutionally entitled to contract with the government but then refuse to comply with the parts of the contract to which they object would have a profound impact on all government contracting.

The federal government filed a “friend of the court” brief supporting CSS. It told the justices that “the United States has a substantial interest in the preservation of the free exercise of religion. It also has a substantial interest in the enforcement of rules prohibiting discrimination by government contractors.” The framing of this statement makes clear that the Trump Administration views its interest in prohibiting discrimination as a mere afterthought to its interest in preserving the free exercise of religion. The brief contends, contrary to the findings of fact at the trial court, that the Philadelphia’s nondiscrimination policy exhibits “hostility toward religion.”

CSS’s primary argument is that the Constitution’s safeguards protecting “free exercise” of religion entitles it to continue to contract with the city, even if it refuses to comply with one of the terms of that contract because it objects to that term on religious grounds. For this reason, Fulton is a significant escalation in the legal war over whether and when people of faith may violate laws that they object to for religious reasons.

A group of scholars who study the rights of children filed a brief supporting the city. They contend that providing an exemption for religious foster-care agencies that refuse to certify same-sex couples would be harmful for foster children by limiting the pool of potential foster parents. A similar argument came from a brief filed by social workers and nonprofits that deal with child welfare, adoption and foster care, who told the justices that LGBTQ youth are both disproportionately represented in the foster-care system and more at risk for negative experiences in that system. Studies have suggested, the groups said, that the best way to prevent these negative experiences is by placing LGBTQ youth with welcoming foster families, which can be hard to find. “Eliminating prospective foster parents on the basis of their sexual orientation may remove the very parents who could most benefit LGBTQ children in foster care,” the groups concluded.

Other scholars have examined the potential outcomes of Fulton v. City of Philadelphia and identify how a broad ruling from the Court in support of CSS could have the following results:

  • Religious child welfare agencies could be given a right to demand taxpayer funding while rejecting qualified and loving parents simply because they are Jewish, Catholic, LGBTQ, or single parents.
  • Nearly every religiously affiliated social service agency that receives government funding—such as job training programs, emergency shelters, and more—might claim a right to discriminate.
  • If the government is unable to set and enforce the terms of its contracts, even when paying agencies with taxpayer money, it would make it nearly impossible for state and local governments to set standards for the provision of public services.
  • Religious agencies might be able to claim a religious exemption to a wide array of regulations and laws, including those that protect public health and safety—like building codes, sanitation requirements, and food safety regulations.
  • A broad ruling in favor of CSS could leave millions of people without access to needed publicly funded services—and discrimination against LGBTQ people and same-sex couples, women, people of faith, unmarried couples, and more would become a regular occurrence when seeking needed social services or assistance.[5]

After the Oct. 26 confirmation of Justice Amy Coney Barrett to fill the vacancy created by the death of Justice Ruth Bader Ginsburg, this case will be one of the first cases argued with a new, solidly conservative majority on the court. Two justices have recently reiterated their criticism of the court’s 2015 ruling in Obergefell. In a statement regarding the denial of review in the case of Kim Davis, the Kentucky clerk who refused to issue marriage licenses after the decision in Obergefell, Justices Clarence Thomas and Samuel Alito wrote that the ruling “will continue to have ‘ruinous consequences for religious liberty.’”[6]  Fulton v. City of Philadelphia was likely to end in victory for the religious right even before Justice Amy Coney Barrett’s confirmation gave conservatives a 6-3 majority on the Supreme Court. With Barrett now on the Court, Fulton is overwhelmingly likely to end in a major defeat for LGBTQ equality.[7]

[1] Obergefell v. Hodges, 135 S. Ct. 2584, 192 L. Ed. 2d 609, 25 Fla. L. Weekly Fed. S 472, 115 A.F.T.R.2d (RIA) 2015 2309 (2015)

[2] Bostock v. Clayton County, No. 17-1618 (U.S. Jun. 15, 2020)

[3] Masterpiece Cakeshop, Ltd. v. Colo. Civil Rights Comm'n, 138 S. Ct. 1719, 201 L. Ed. 2d 35, 27 Fla. L. Weekly Supp. 289, 86 U.S.L.W. 4335 (2018)

[4] Employment Div. v. Smith, 494 U.S. 872, 110 S. Ct. 1595 (1990)

[5] Movement Advancement Project. August 2020. The High Stakes in the Fulton Case: Undermining the Vital Role of Child Welfare Laws & Regulations in Protecting America’s Children.

[6] Davis v. Ermold, No. 19-926 (U.S. Oct. 5, 2020)

[7] Amy Howe, Case preview: Court will tackle dispute involving religious foster-care agency, LGBTQ rights, SCOTUSblog (Oct. 28, 2020, 4:00 PM),