Supreme Court Rules Foster Agencies Can Deny Certification to Same-Sex Couples on Religious Grounds

June 17, 2021 Updated: June 17, 2021

The U.S. Supreme Court unanimously ruled on Thursday that a Catholic foster agency in Philadelphia was free to turn away same-sex couples as foster parents on grounds of religious freedom.

The decision (pdf) comes in the case of Fulton v City of Philadelphia, in which Catholic Social Services (CSS) sued the city after being ordered not to exclude same-sex couples from certification.

In a 9–0 ruling, the high court found that the city of Philadelphia violated the First Amendment when it refused to continue contracting with CSS, which does not certify unmarried couples or same-sex couples as foster parents on religious grounds.

“The City’s actions burdened CSS’s religious exercise by forcing it either to curtail its mission or to certify same-sex couples as foster parents in violation of its religious beliefs,” Supreme Court Chief Justice John Roberts wrote in the opinion.

“The refusal of Philadelphia to contract with CSS for the provision of foster care services unless the agency agrees to certify same-sex couples as foster parents cannot survive strict scrutiny and violates the Free Exercise Clause of the First Amendment,” the opinion noted.

CSS takes the view that “marriage is a sacred bond between a man and a woman” and believes that certification of prospective foster families is an endorsement of their relationship. It refuses to certify unmarried couples, regardless of their sexual orientation, or same-sex married couples, although it does not object to certifying gay or lesbian individuals as single foster parents.

The Supreme Court noted in the opinion that no same-sex couple has ever sought certification from CSS and if one did, then it would be directed to one of more than 20 other foster agencies in Philadelphia that do certify same-sex couples.

“For over 50 years, CSS successfully contracted with the City to provide foster care services while holding to these beliefs,” Roberts wrote, adding that things changed in 2018 when Philadelphia city authorities took the position that they would no longer refer children to CSS on grounds that its refusal to certify same-sex couples violated a non-discrimination provision in its contract with the city.

“The contractual non-discrimination requirement burdens CSS’s religious exercise and is not generally applicable, so it is subject to ‘the most rigorous of scrutiny,'” Roberts wrote in the opinion. A government policy can only meet the “most rigorous of scrutiny” condition if it is narrowly tailored to achieve “compelling interests,” which the Supreme Court determined it did not.

With the decision, the Supreme Court is carving out legal protections for people with religious objections to same-sex marriage.

The case drew the attention of the Trump administration, which backed CSS in its lawsuit as a so-called friend of the court. The Trump-era Justice Department filed an amicus brief (pdf), in which it argued that Philadelphia’s actions had “impermissibly discriminated against religious exercise” and shown “unconstitutional hostility toward Catholic Social Services’ religious beliefs.”

Currently, laws in 11 states allow state-licensed foster and adoption agencies to reject prospective parents who are in same-sex relationships on religious grounds, according to the Movement Advancement Project, a progressive think tank.

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