The Supreme Court (SCOTUS) has handed down a decision in Fulton v. The City of Philadelphia —and the decision in the case could have fundamentally impacted the availability to LGBTQ+ people of services paid for by our tax dollars.
The case centered around the question of whether the City of Philadelphia's foster care system could refuse to contract with Catholic Social Services (CSS) because CSS refused to certify same sex couples on the grounds that CSS “holds the religious belief that marriage is a sacred bond between a man and a woman." Philadelphia “explained that the refusal of CSS to certify same-sex married couples violated both a non-discrimination provision in the agency's contract with the City as well as the non-discrimination requirements of the citywide Fair Practices Ordinance."
This morning, SCOTUS ruled unanimously that “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."
The ruling could have completely gutted non-discrimination clauses and opened the door to government services of all kinds being contracted to providers who might refuse services to constituents on religious grounds. However, the court's liberal justices joined a decision crafted by Chief Justice Roberts that did not accept CSS' argument that the Constitution bars the government from enforcing non-discrimination requirements against those with religious objections to complying. The court held that the city's decision to end CSS' foster care contract was unconstitutional because the contract itself was not generally applicable, where it contained a mechanism for discretionary exemptions from its terms.
Organizations like Out & Equal Workplace Advocates & the ACLU have been quick to try to frame the decision as avoiding creating a “license to discriminate."
This decision is painful because the discrimination at the heart of this case is being allowed to stand. At the same time, the Court is saying that there is no broad right to discriminate, that the government can enforce nondiscrimination laws.
Erin Uritus, CEO of Out & Equal Workplace Advocates.
“We are relieved that the court did not recognize a license to discriminate based on religious beliefs," said Leslie Cooper, deputy director of the ACLU LGBTQ & HIV Project. “Opponents of LGBTQ equality have been seeking to undo hard-won non-discrimination protections by asking the court to establish a constitutional right to opt out of such laws when discrimination is motivated by religious beliefs… This is the second time in four years that the court has declined to do so. This is good news for LGBTQ people and for everyone who depends on the protections of non-discrimination laws."
However, others are worried about the ruling, and about the ongoing war against non-discrimination by the extreme right in this country.
“As the leader of an institution with many LGBTQ students, we are disappointed by today's decision but relieved that the Supreme Court did not take an even more extreme position and strike down non-discrimination laws broadly," wrote Rev. Serene Jones, Ph.D., president of Union Theological Seminary. “Still, we are deeply worried about the possible implications of this ruling at a time when we're seeing an onslaught of legislative attacks and hate crimes against LGBTQ people, particularly against transgender people. Let me be clear: God loves LGBTQ people. Anyone that says otherwise is fundamentally misunderstanding and warping our scripture."
Erin Mayo-Adam, Assistant Professor of Political Science at Hunter College and director of the LGBTQ Policy Center at the Roosevelt House, is also deeply concerned about the case's broad implications. Mayo-Adam described the decision as “the least-worst option" and believes this is why “the three liberal justices joined the majority opinion."
The outcome is the least-worst because it doesn't carve a blanket exemption for religious groups contracted by the city from non-discrimination laws. But it still is a bad outcome for any group these organizations seek to discriminate against, including LGBTQ people.
Erin Mayo-Adam, Assistant Professor of Political Science at Hunter College
Because it narrowly focused on the non-discrimination law's applicability due to allowing for individual exemptions, the immediate outcome of the case is that it “requires Philadelphia to contact with an agency that refuses to serve same-sex couples and unmarried couples."
However, Mayo-Adam contends, “The case also does provide another avenue for religious orgs that are contracted by governments to refuse to serve LGBTQ people. If a law is written in a similar manner as Philadelphia's in a city where religious groups who want exemptions are primary providers, this would mean that LGBTQ people would have less access to social services. This could apply to a host of humanitarian services, including homeless shelters, food banks, and hospitals."
In all likelihood, we will only understand the full impact this decision will have on LGBTQ+ citizens as groups around the country attempt to utilize it to deny service—which will lead to further litigation around whether religious organizations should be able to take your money but not provide you with the service you are paying for.