Justice Dept. files brief in support of Catholic group

NBC Out | June 4, 2020

The Trump administration submitted a brief to the Supreme Court on Wednesday arguing that a taxpayer-funded organization should be able to refuse to work with same-sex couples and others whom the group considers to be in violation of its religious beliefs.

The brief was filed by the Department of Justice in the case Fulton v. City of Philadelphia, which centers on the refusal of Catholic Social Services, a religious nonprofit that operates a child welfare agency in Philadelphia, to place adoptive and foster children with same-sex couples in violation of the city’s nondiscrimination ordinance.

In its brief, the government argued that “Philadelphia has impermissibly discriminated against religious exercise,” and that the city’s actions “reflect unconstitutional hostility toward Catholic Social Services’ religious beliefs.”

The latter argument cites a recent Supreme Court case in which the government intervened on behalf of baker Jack Phillips who refused to bake a wedding cake for a gay couple due to his religious beliefs. The high court awarded a narrow victory to Phillips on the grounds that the Colorado Human Rights Commission had shown hostility toward his religious views.

Catholic Social Services sued Philadelphia in 2018 after the city ended its contract with the faith-based service provider upon learning the organization would not consider same-sex couples as potential parents for foster children. The organization argued that to provide these services to gay couples violated its constitutional rights to free religious exercise and free speech.

Catholic Social Services lost the case in district court and subsequently appealed to the 3rd U.S. Circuit Court of Appeals, which unanimously affirmed the lower court’s ruling in April 2019. Attorneys for the organization then appealed to the Supreme Court in February.

“I’m relieved to hear that the Supreme Court will weigh in on faith-based adoption and foster care,” Lori Windham, senior counsel at Becket Fund for Religious Liberty, which is representing Catholic Social Services, said in February. “Over the last few years, agencies have been closing their doors across the country, and all the while children are pouring into the system.”

Civil rights advocates, however, warned of the far-reaching consequences of ruling for Catholic Social Services.

“While this case involves rejecting LGBTQ families, if the Court accepts the claims made in this case, not only will this hurt children in foster care by reducing the number of families to care for them, but anyone who depends on a wide range of government services will be at risk of discrimination based on their sexual orientation, religion or any other characteristic that fails a provider’s religious litmus test,” Leslie Cooper, deputy director of the ACLU’s LGBT and HIV Project, told NBC News.

Related: NBC OUT President Trump misses Pride Month for third time

Under President Donald Trump, the Department of Justice has not shied away from weighing in on LGBTQ rights cases at the Supreme Court. In addition to the Masterpiece Cakeshop case, the department also submitted a brief on behalf of a funeral home accused of firing an employee, Aimee Stephens, when she came out as transgender. The high court’s ruling in that case could come down any time.

In January 2019, the administration granted a waiver to Miracle Hill Ministries in South Carolina, allowing it to deny services to same-sex or non-Christian couples and continue as a state-supported foster care agency.

Eleven states have laws that allow state-licensed agencies to claim religious exemptions in the foster care and adoption process, and others are considering similar measures.

LGBTQ advocates say these laws and policies only worsen the problem of a lack of available foster families. There were about 443,000 children in foster care across the United States in 2017, according to a Department of Health and Human Services report published that year. Each year, around 50,000 children are adopted through the child welfare system, but about 20,000 others “age out” before being placed with an adoptive family, the department reports.

Studies show LGBTQ families foster and adopt at higher rates and are more likely to take in older, special needs and minority children. Over 21 percent of gay couples are raising adopted children, compared with 3 percent of straight couples, and nearly 3 percent of gay couples have foster children, compared with 0.4 percent of straight couples, according to a 2018 report from the Williams Institute at UCLA Law.

“Our government provides critical social services to people in need, including through partnerships with private secular and religious organizations,” Cooper said. “Discrimination has no place there.”

The Supreme Court will hear Fulton v. City of Philadelphia during its next term, which begins in October.