Fulton v. Families: Escalating the Right to Discriminate
LESS THAN A YEAR FROM THE U.S. Supreme Court’s historic decision in Bostock v. Clayton County, Georgia, confirming that LGBTQ people are protected from discrimination under federal laws prohibiting sex discrimination, and we are again waiting for a major ruling that will impact the scope of civil rights protections for the LGBTQ community and many others.
The Supreme Court is expected to announce its decision in Fulton v. City of Philadelphia before the end of June. The case, which involves discrimination against same-sex couples by a taxpayer-funded foster care agency in Philadelphia, could have profound consequences nationwide for children in foster care and for the enforceability of nondiscrimination laws protecting not just LGBTQ people, but members of different faith communities and anyone who has faced discrimination in almost any context.
In 2018, Philadelphia officials learned that two of the city’s contracted foster care agencies were unwilling to accept prospective foster families headed by same-sex couples. This practice violated the city’s nondiscrimination requirement that applies to all foster care agencies, which includes a prohibition against discrimination based on sexual orientation. City officials informed the agencies that it would no longer contract with them to provide foster care services for children in the city’s custody unless they would accept all qualified families as required by the city’s contracts. One of the agencies agreed to do so. The other, Catholic Social Services, refused and sued the city, claiming that because it has a religious object ion to certifying same-sex couples as foster parents, the U.S. Constitution gives it a right to opt out of Philadelphia’s nondiscrimination requirement. In other words, the agency claimed that its religious objections to same-sex couples trumped the city’s right to prevent discrimination in a government program.
CSS’s claim is similar to the claim brought a few years ago by a baker that refused on religious grounds to provide wedding cakes to same-sex couples. In Masterpiece Cake shop, the Supreme Court dodged the question of whether a business’s religious object ion to serving LGBTQ people gave it a license not to follow the civil rights laws that applied to everyone else. The court, instead, ruled for the baker on a narrow, fact-specific ground, finding that the state commission that investigated the baker’s practice demonstrated hostility toward the baker’s religious beliefs and subjected him to different treatment because of that host i l it y. In the same term, the Supreme Court held that then President Trump’s travel ban targeting Muslims somehow did not constitute religious discrimination.
With Fulton, the current court— including two new Trump-appointed justices (Brett Kavanaugh and Amy Coney Barrett, both Catholic)—faces an opportunity to answer the question left unanswered in Masterpiece Cake shop. But the claim in Fulton is even more extreme. In this case, CSS is providing a government service on the taxpayer’s dime and still claiming a constitutional right not to follow a nondiscrimination requirement.
While we continue to celebrate the transformative effect of the court’s decision in Bostock establishing federal workplace protections for LGBTQ people, the outcome of Fulton could chip away at these (and all) our protections in devastating ways.
The court could resolve the case in many ways. It could maintain the rule in place for decades and reject CSS’s claim. After all, we have already gone through this with religious objections to other non discriminant ion laws, and longstanding law makes clear that the constitution’s protections for religion, which are important and necessary, do not give individuals or entities a right to disregard laws prohibiting discrimination.
The court might accept CSS’s allegations of anti-religious hostility on the part of Philadelphia officials—even though the lower courts found such claims baseless—and issue a narrow decision similar to its decision in Masterpiece Cake shop, which would be limited to the facts of the case. This would be devastating to child welfare services in Philadelphia, but would not create a nationwide rule.
The most alarming outcome would be if the court accepts CSS’ invitation to disregard decades of precedent and establish a new constitutional right to discriminate for those who have religious objections to complying with the laws that apply to everyone else. The prospect of such a sweeping ruling is terrifying, and the consequences could extend far beyond discrimination against same-sex couples in the foster care system.
The discrimination at issue in Fulton involved religiously motivated discrimination based on sexual orientation. But given the diversity of religious beliefs in our country, if the court establishes a constitutional right to discriminate based on one’s religious beliefs, the types of legally authorized discrimination would be limitless. This is not hypothetical. Some foster care agencies, based on their religious beliefs, exclude families because they do not share the agency’s Christian faith. This includes the largest state-contracted agency in South Carolina, which accepts only evangelical Protestant Christians and has excluded Catholic and Jewish families. Philadelphia’s CSS itself, until recently, required applicants to provide a clergy letter attesting to their religious observance; families that are not observant, or who are not observant in a faith that has clergy, were excluded (the agency rescinded this policy when it came out in the Fulton litigation). Agencies could have religious objections to other groups such as interracial couples or single people.
The First Amendment does not permit preferential treatment of some religious beliefs over others even if the court’s decision in Masterpiece Cakeshop and the travel ban cases suggest otherwise. But if the court rules that foster care agencies can exclude families that do not meet their religious tests, every state in the country could be forced to tolerate a wide range of discrimination by taxpayer-funded foster care agencies. In other words, it will be open season on discrimination and there will be no way for Congress or state legislatures to stop it.
This, of course, would cause harm to those who are subjected to discrimination, which is a painful and humiliating experience. But the people who bear the greatest burden of discrimination in the foster care system are the more than 400,000 children in foster care across the country. If government- contracted foster care agencies have a constitutional right to exclude families based on religious criteria that have nothing to do with the ability to care for a child, it will make it even harder to find foster families for children in care.
Even where there are other foster care agencies that don’t discriminate—which is not the case everywhere—some families will be unwilling to continue knocking on doors, exposing themselves to the risk of more discrimination. For some families, the fact that agencies are permitted to discriminate will deter them from ever trying.
Discrimination can also mean some children will be denied the family place-ment that is in their best interest. For example, an agency in Michigan separated a child from his siblings who were in the care of a same-sex couple because the agency would not—because of its religious beliefs—make placements in same-sex parent families. In that case, the state was able to take corrective action against the agency.
If the court agrees with CSS, every state and city across the country could be forced to permit such discrimination in its public child welfare system despite the damaging consequences for children. Siblings could be separated, children placed far from their schools and communities, young people could grow up in group homes rather than families—all to protect the discriminatory practices of government-contracted service-providers. We will be ensuring trauma for generations. There is no reason the damaging impact of such a ruling would stop at foster care. Foster care is not the only service that governments provide in partnership with private organizations. Governments contract with secular and faith-based private organizations to provide all sorts of public services including shelter, health care, food provision and disaster relief services. Nondiscriminat ion requirements help ensure access to all who qualify and protect against bias in the delivery of essential and survival services. If the court rules that government s are required to permit government service contractors to exclude participants based on religious objections to serving them, people could be turned away from these crit ical government services because of who they are and based solely on the religious standards set by the entity. This would be a significant obstacle to accessing services that could be a complete barrier for the most vulnerable among us.
At a time of escalating crises—the COVID-19 pandemic; a lack of clean water in Flint, Michigan, and Jackson, Mississippi and elsewhere; wildfires and droughts: a rise in houselessness and more—protecting access to government services could not be more urgent. But what we could see is the expansion of protections to discriminate in the provision of these services.
The consequences could be even more far-reaching. If the court says the constitutional right to religious liberty is a license to discriminate, it could limit the enforceability of all civil rights laws— laws protecting against discrimination in the workplace, by commercial businesses, by landlords and beyond—at every level of government. LGBTQ people, unfortunately, are all too familiar with discriminatory treatment grounded in religious objections to their sexual orientation or gender identity. Indeed, religious beliefs are frequently cited in defense of discriminatory treatment of LGBTQ people including by employers who discriminated against workers because they are LGBTQ, health care facilities that denied care to LGBTQ patients—and f lorists, bakers and caterers who denied services to same-sex couples. The court’s decision in this case could create a constitutional right to discriminate that would affect every aspect of LGBTQ lives. This discrimination against LGBTQ people parallels the history that we have seen against all women, Black people and people with disabilities. This is a continuation of generations of exclusion being legitimized as religiously mandated.
The Fulton case is part of a broader strategy of opponents of LGBTQ people using religious freedom arguments to establish a license to discriminate. These ef forts accelerated af ter the Supreme Court’s 2015 ruling establishing the righ because of their faith. In addition to foster care agencies that, based on their religious beliefs, exclude applicants because they are the “wrong” faith, there have been cases of employers discriminating against workers because they are Muslim, Catholic or atheist; and businesses refusing to serve Jews and Muslims. In those cases, nondiscrimination laws offered a remedy. The court’s ruling in Fulton could take that away and prevent governments from taking any action against those who discriminate for religious reasons even when the discrimination is against people of faith. Finally, while there is reason to fear the impact of discrimination by those who act based on their religious beliefs, the surge in racism, Islamophobia and transphobia over the past four years suggests a ruling establishing a constitutional right to discriminate would embolden even more discrimination from actors with all sorts of motives. No one should be turned away from a foster care agency, health care service, homeless shelter, restaurant or job because of their sexual orientation, gender, faith, race or any protected characteristic regardless of what motivates the discriminatory treatment. If the court establishes a new constitutional right for religious objectors to opt out of nondiscrimination requirements, it will turn back the clock on generations of progress against the harms of discrimination. 2018 found nearly 20% of Americans oppose interracial marriage.
While CSS’s claims are based on religious liberty, the case’s success would undermine religious liberty by authorizing discrimination against people because of their faith. In addition to foster care agencies that, based on their religious beliefs, exclude applicants because they are the “wrong” faith, there have been cases of employers discriminating against workers because they are Muslim, Catholic or atheist; and businesses refusing to serve Jews and Muslims. In those cases, nondiscrimination laws offered a remedy. The court’s ruling in Fulton could take that away and prevent governments from taking any action against those who discriminate for religious reasons even when the discrimination is against people of faith.
Finally, while there is reason to fear the impact of discrimination by those who act based on their religious beliefs, the surge in racism, Islamophobia and transphobia over the past four years suggests a ruling establishing a constitutional right to discriminate would embolden even more discrimination from actors with all sorts of motives.
No one should be turned away from a foster care agency, health care service, homeless shelter, restaurant or job because of their sexual orientation, gender, faith, race or any protected characteristic regardless of what motivates the discriminatory treatment. If the court establishes a new constitutional right for religious objectors to opt out of nondiscrimination requirements, it will turn back the clock on generations of progress against the harms of discrimination.