Unanimous Supreme Court Backs Catholic Adoption Agency in Dispute Over Gay Foster Parents

Decision ducks broader questions about religious exemptions

Getty Images
June 17, 2021

A unanimous Supreme Court on Thursday sided with a Catholic adoption agency that was removed from the city of Philadelphia’s foster program because it refused to certify same-sex couples as parents.

Though the Court was unanimous as to the result, the justices divided over their rationale. Chief Justice John Roberts delivered the Court’s opinion for six justices, which included the liberal trio plus Justices Brett Kavanaugh and Amy Coney Barrett. Though the decision is a clear victory for religious adoption agencies, the Court’s decision did not go as far as some religious conservatives hoped.

"[Catholic Social Services] has long been a point of light in the City’s foster-care system. CSS seeks only an accommodation that will allow it to continue serving the children of Philadelphia in a manner consistent with its religious beliefs; it does not seek to impose those beliefs on anyone else," the decision reads.

The ruling defers for another day a broad statement about constitutional free exercise rights, and instead turns on the particulars of Philadelphia’s foster system. In two important separate opinions, Justices Amy Coney Barrett and Samuel Alito said the Court in some future case should reconsider a foundational 1990 decision that favors government officials in disputes over religious rights.

A March 2018 report in the Philadelphia Inquirer about Catholic Social Services’s placement practices set off Thursday’s case. Three days after the paper reported the Catholic agency would not place foster children with same-sex couples, Philadelphia’s city council passed a resolution calling for an investigation and two city agencies opened inquiries. Catholic Social Services executive vice president James Amato testified in June 2018 about a meeting with city officials, where agency leadership was told that the matter had the attention of the highest levels of city government.

Catholic Social Services is a ministry of the Archdiocese of Philadelphia, with whom Mayor Jim Kenney has feuded for the better part of two decades. Kenney has attacked the archdiocese and its recently departed leader, Archbishop Charles Chaput, on a range of issues from parochial school closings to the role of women in Catholic liturgies. In a representative tweet from 2014, Kenney said the archdiocese cares more about money than people, and he called on Pope Francis to "kick some ass here."

Lawyers for the Catholic agency highlighted that history in their petition to the Supreme Court, and it attracted attention during oral arguments in November 2020.

"It seems like Philadelphia created a clash and was looking for a fight and has brought that serious, controversial fight all the way to the Supreme Court," Justice Brett Kavanaugh told Neal Katyal, the lawyer representing Philadelphia.

The city didn’t see it that way. Philadelphia argued the legal question in Thursday’s case was a mundane one, even if the underlying facts were sensational. Catholic Social Services is fundamentally a city contractor, and the city has broad latitude to set the terms of its contracts with third parties. In this case, the term is a nondiscrimination rule that forbids city contractors from discriminating against gay people.

In a 1990 case, Employment Division v. Smith, the Supreme Court said government actions that interfere with religious practice are permissible, as long as the action is neutral and applies to everyone. A federal trial court relied on Smith in a decision that sided with the city. U.S. District Judge Petrese Tucker said the nondiscrimination provision is the kind of general and neutral law that Smith protects, even if it interferes with Catholic Social Services’s religious practice.

The Third U.S. Circuit Court of Appeals upheld the trial judge’s decision, prompting Catholic Social Services’s appeal to the Supreme Court.

In their petition to the High Court, Catholic Social Services called on the justices to say Philadelphia’s actions violated the First Amendment. And it said the Court should go a step further and overturn Smith. There was reason to think the Court would do so. Justice Samuel Alito suggested the Court should revisit Smith in a 2019 opinion joined by three other justices.

Local governments warned the Court that a sweeping decision would complicate their operations. If Smith were overturned, municipalities would have to navigate a huge array of religious accommodations from employees or contractors, they said. That latter is especially problematic, they added, since many municipal governments rely on private entities to fulfill basic functions like garbage collection or snow removal. And accommodating religious objectors could provoke lawsuits of their own.

"Simply put, if Smith is overruled, local governments will lack the wherewithal to process the potentially innumerable religious objections," a brief from the League of Cities and the State and Local Legal Center reads.

In Thursday’s decision, the Court ultimately skirted Smith and resolved the case on narrower grounds. Philadelphia’s contract with the agency allows it to grant exemptions to the nondiscrimination rule on a case-by-case basis. As such, the rule is not neutral and applicable to everyone, meaning Smith doesn’t govern, the Court said.

"The creation of a system of exceptions under the contract undermines the city’s contention that its nondiscrimination policies can brook no departures," Roberts wrote.

The decision goes on to say that the city failed to give a "compelling interest" for excluding Catholic Social Services from the system. As such, the action violated the First Amendment.

In a section of the opinion important for religious adoption groups across the country, the Court said that foster care agencies do not act as "public accommodations" when certifying families for the foster system. That means state and local ordinances forbidding anti-LGBT discrimination don’t apply to foster agencies when they’re vetting prospective foster parents.

In a separate opinion, Justice Amy Coney Barrett said the Court could reconsider Smith in a future case, and she urged future litigants to prepare answers for a few specific questions. Justice Brett Kavanaugh joined the Barrett concurrence.

Justices Samuel Alito and Neil Gorsuch wrote separately to concur with the outcome but fault the Court for failing to deal with Smith head on.

All told, there appeared to be five votes over several opinions favoring reversal of Smith at some future date.

The case is No. 19-123 Fulton v. City of Philadelphia


Update 3:05 p.m.: This piece has been updated with additional context.