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Supreme Court Rules Catholic Group Doesn't Have To Consider LGBTQ Foster Parents

The justices of the U.S. Supreme Court sided with a Catholic group in its dispute with the City of Philadelphia over LGBTQ couples and foster care.
Erin Schaff
The justices of the U.S. Supreme Court sided with a Catholic group in its dispute with the City of Philadelphia over LGBTQ couples and foster care.

The U.S. Supreme Court on Thursday sided with Catholic Social Services in a battle that pitted religious freedom against anti-discrimination laws in Philadelphia and across the country. The court declared that the private Catholic agency was entitled to renewal of its contract with the city for screening foster parents, even though the agency violated city law by refusing to consider married LGBT couples.

The court's decision marks a revolution in the law, for the first time declaring explicitly that anti-discrimination laws, at least those meant to protect the LGBT community, play second fiddle under the Constitution.

The decision also marked a triumph for a new brand of conservatism on the court, which is putting the Constitution's guarantee to the free exercise of religion at the highest level of protection, while dramatically decreasing the traditional approach based on separation of church and state.

The conservative majority, however, did not explicitly overturn a decision written more than three decades ago by Justice Antonin Scalia, himself a conservative trailblazer. In that decision, Scalia wrote for the court that when the government has a "generally applicable" law or regulation and enforces it neutrally, the government's action is presumptively legitimate, even if it has some "incidental" adverse impact on some citizens.

Writing for the court majority, Chief Justice John Roberts said: "The refusal of Philadelphia to contract with CSS for the provision of foster care services unless CSS agrees to certify same-sex couples as foster parents violates the Free Exercise Clause of the First Amendment." Several other justices wrote concurring opinions.

The dramatic nature of Thursday's decision was underlined by the fact that the case involved government contracting--an area of the law in which the court in the past has said that government is at the apex of its power to impose conditions on how the taxpayers' money is spent.

The city of Philadelphia, which has custody of about 5,0000 abused and neglected children, contracts with 30 private agencies to provide foster care in group homes and for certification, placement, and care of children in individual private foster care homes.

The city's contracts ban discrimination against LGBT couples in the screening of foster parents, but Catholic Social Services, citing religious grounds, has a policy of refusing to consider and certify same-sex couples. When the CSS policy was disclosed in press reports, the city ended its contract with CSS for those services in the future. CSS sued, arguing that the city's position violated it's constitutional right to the free exercise of religion.

The Becket Fund, representing CSS, argued that the city was trying to exclude CSS from work that it has done "for two centuries." But lawyer Neal Katyal, representing the city, countered that "you can't on Monday sign a contract that says we won't discriminate and on Tuesday go ahead and discriminate." And he noted that despite the loss of the screening contract, CSS continues to get millions of dollars more from the city for running other kinds of foster care programs, including group homes.

Copyright 2021 NPR. To see more, visit https://www.npr.org.

Nina Totenberg is NPR's award-winning legal affairs correspondent. Her reports air regularly on NPR's critically acclaimed newsmagazines All Things Considered, Morning Edition, and Weekend Edition.