The Supreme Court Just Delivered a Blow to LGBTQ Rights

In yet another battle over the line between religious freedom and discrimination against LGBTQ people, the Supreme Court ruled Thursday that the city of Philadelphia was wrong to stop sending foster kids to a religious organization that wouldn’t certify same-sex couples as foster parents.

The organization, Catholic Social Services, sued Philadelphia in 2018, arguing that by refusing to work with them, the city had violated Catholic Social Services’ First Amendment rights. Philadelphia, meanwhile, argued that Catholic Social Services had violated its anti-discrimination policies. 

In his opinion, Chief Justice John Roberts sided with the Catholic Social Services.

The group, Roberts wrote, “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 ruling is the latest sign that proponents of “religious liberty” are winning in the nation’s highest court, which is now dominated by conservatives. It’s also a blow to LGBTQ rights advocates, who feared that both LGTBQ would-be parents and foster care kids would suffer after a loss for Philadelphia. 

But the decision was also unanimous: All nine of the justices took the Catholic Social Services’ side, although not all signed onto Roberts’ legal reasoning. The fact that so many justices—including liberals like Justices Stephen Breyer, Sonia Sotomayor, and Elena Kagan—agreed with Roberts may be due, in part, to the fact that his explanation partially turned on a relatively procedural question based on a loophole in Philadelphia’s anti-discrimination policy.

“This decision’s bottom line is that, in this circumstance, the religious entity has won. That’s true,” said Marci Hamilton, a professor of practice at the University of Pennsylvania’s Fels Institute of Government. Hamilton filed an amicus brief in support of the city of Philadelphia in the case. “But they won on the mechanism for decision-making in the city. They did not win because they have an automatic right to discriminate.”

“This is not a license to discriminate,” she added. “This is a message to all governments that if they are going to ban discrimination against LGBTQ [people], they have to do it in a rigorously neutral and generally applicable way.”

Still, the Thursday ruling was a “harmful loss to the children in the foster care system in Philadelphia as well as the countless LGBTQ parents who want nothing more than to give these children a loving home,” Fatima Goss Graves, president and CEO of the National Women’s Law Center, said in a statement.

“Weakening the government’s ability to protect their civil rights is hardly in their best interest, and we’re committed to ensuring this loophole is not stretched to further justify hatred or prejudice,” Graves said.