A case pending before the Supreme Court could immediate implications for the rights of LGBTQ+ families, but also has the broader potential to undercut existing nondiscrimination precedent for LGBTQ+ communities. With opening arguments slated to be heard on November 4th, the day after ellection day, Fulton v. City of Philadelphia will ultimately decide whether a Catholic adoption agency that is contracted by government institutions can refuse to provide services to LGBTQ+ couples due to the group’s religious beliefs. The impacts of the decision could be felt elsewhere though, setting a precedent for other government contracts.
The case began in 2018 when the city of Philadelphia learned that Catholic Social Services (CSS), an organization it contracted for foster care services refused to accept same-sex couples. CSS is a religious nonprofit group affiliated with the Archdiocese of Philadelphia, whose refusal was on the basis of religion. As the group’s contract with the city specifically prohibited discrimination based on race, religion, and nation of origin, and the city’s Fair Practices Ordinance also prohibited discrimination due to sexual orientation, the City of Philadelphia ended the contract.
As a result, CSS sued in court. The courts have rejected their arguments so far, but now it's set to be heard by the Supreme Court, where Amy Coney Barrett will likely be sitting as an associate justice. Her asension will make fora strengthened conservative majority of justices that could side with CSS and give judicial approval to religious exemptions allowing otherwise discriminatory practices. The consequences could be dire.
"There are lots of potential consequences here," Louise Melling Deputy Legal Director of the American Civil Liberties Union, who is involved in the case, explained on the ACLU's At Liberty podcast. "First and foremost there are consequences in the foster care context and those consequences are both for children to find a place to be in a family and the other consequence of course that a ruling in the favor of Catholic Social Services is sanctioning, in a sense approving, in some form that you can get this contract and discriminate in violation of the antidiscrimiantion principles." This sort of decision would be a reversal of precedent.
"In the context of other government contracts we can think of that discrimination in the context of homeless shelters or benefits," Melling continued. "And then there are many cases: there’s employment there’s public accommodation services, there’s healthcare."
In this instance, and instances like it, CSS and other companies and oragnizations contracted by the government, are working for the government. They are, many times, fulfilling duties of the government that the government itself can not fulfill. CSS winning this case, and the Supreme Court deciding that religious preference supercedes the rights of LGBTQ+ folks would be sanctioning state-funded discrimination.
"Do not minimize what these case is about," Melling cautions. "These are cases that are really fundamental challenges to our very achievement of the nondiscrimination principles." And it is a part of a wave of cases across the country that have this same aim, all undermining rights that have already been won in court or passed via various legislation.
At 10:00 AM EST, the day after presidential election, the opening arguments for this case will be heard, and like the slate of cases heard on October 8, last year, could have far reaching consequences, but ones we are only likely to hear about some time in 2021.