Supreme Court of the United States
Supreme Court of the United States July 9th, 2020

The Supreme Court heard nearly two hours of oral arguments Wednesday in the case of Fulton v. City of Philadelphia, a high-profile challenge to the city’s decision to stop working with a Catholic foster care organization that limits its foster care endorsements to heterosexual married couples.

Based on comments by the justices during the hearing, several court observers predicted that the high court, sometime next year, would rule narrowly for the plaintiffs, Catholic Social Services (CSS), without making any sweeping decisions about the conflict between religious liberty and LGBTQ rights.

Until 2018, CSS had worked with the city of Philadelphia in certifying prospective foster parents, but its religious beliefs prohibited it from endorsing homosexual couples or unmarried heterosexual couples. CSS functions under the Archdiocese of Philadelphia.

When Philadelphia officials learned of CSS’s policy two years ago, the city council instructed the city to stop referrals to CSS. In turn, CSS filed a federal lawsuit in 2018 challenging that order, arguing the city’s action violated CSS’s religious freedom. CSS lost its case in federal district court and at the 3rd U.S. Circuit Court of Appeals before appealing to the Supreme Court.

“What the city is asking Catholic Social Services to do here is to certify, validate, and make statements that it cannot make,” attorney Lori Windham argued for the plaintiffs, explaining that CSS could not “evaluate, assess and approve” a same-sex couple for foster care, as required by the city, Catholic News Agency reported.

Justice Samuel Alito, showing obvious sympathy to CSS’s plight, told an attorney for the city: “If we are honest about what’s really going on here,” the case is “not about ensuring that same-sex couples in Philadelphia have the opportunity to be foster parents.” Rather, it’s that Philadelphia “can’t stand the message that Catholic Social Services and the archdiocese are sending by continuing to adhere to the old-fashioned view about marriage,” reported Amy Howe, a lawyer, writer and former editor of the SCOTUSblog.

Justice Clarence Thomas, responding to questions over whether the city’s relationship with CSS was contractual or merely a licensing issue, said the relationship involved both contracts and licensing, which he argued would give the city less leeway to apply its nondiscrimination law to CSS’s religious beliefs than if it were merely a contract.

Similar to Alito, Justice Brett Kavanaugh seemed to show concern for carving out room for the plaintiffs’ religious beliefs. Acknowledging that some same-sex couples might feel stigma from CSS’s policy, Kavanaugh said the court needed to “find a balance that also respects religious beliefs.”

“What I fear here is that the absolutist and extreme position [of the city] would require us to go back on the promise of respect for religious believers,” Kavanaugh said.

Both Kavanaugh and Alito argued that some children would likely miss out on placement because of the city’s demand upon the religious beliefs of CSS.

Several news outlets reported that at least five of the justices seemed to show sympathy to CSS’s position, leading to a prediction that the court might rule favorably for the Catholic agency but stop short of issuing ground-altering legal precedent that would carve out broad religious liberty exemptions in such cases.

Howe, the former SCOTUSblog editor, predicted that the high court might deliver a decision similar to its 2018 ruling for Colorado cake baker Jack Phillips, who declined to create a cake for a gay couple in 2013 for their civil union ceremony.

In Phillips’ case, the court ruled that the state of Colorado had shown clear “hostility” toward Phillips’ traditional religious beliefs on marriage in its public statements, but the justices stopped short of making broad pronouncements about religious liberty vs. LGBTQ rights.

Toni Simms-Busch, a social worker who is one of the plaintiffs in the case and an adoptive mom who has fostered through CSS, wrote in an op-ed in the Washington Post: “For more than two centuries, this organization has served vulnerable children with skill and compassion. Yet their ministry is under attack from Philadelphia authorities and activists who would rather see children suffer than allow religious charities to live out their beliefs.”