The U.S. Supreme Court heard oral arguments Nov. 4 in a case involving religious and LGBTQ rights. Although not an employment dispute, businesses are stakeholders in the outcome of the litigation, according to companies from a variety of industries including banking, clothing, health care, legal services, pharmaceutical, retail, technology and travel.
The case arises from a dispute over whether Philadelphia lawfully excluded a religious agency from the city’s foster care program because the agency did not place foster children with same-sex couples. The city said it was enforcing its long-standing nondiscrimination policy.
Catholic Social Services (CSS) would not place foster children with same-sex couples, as this would contradict religious teachings on marriage, said the petitioners—CSS and two of its foster parents—in a brief. The agency said the city violated its First Amendment right to act and speak in a manner consistent with the agency’s religious beliefs.
But businesses and LGBTQ foster parent applicants have a stake in keeping nondiscrimination bars like those adopted by Philadelphia in place, various business groups argued in another brief.
Appeals Court Ruling Challenged
The 3rd U.S. Circuit Court of Appeals ruled that CSS had failed “to make a persuasive showing that the city targeted it for its religious beliefs, or is motivated by ill will against its religion, rather than sincere opposition to discrimination on the basis of sexual orientation.”
Challenging this decision, CSS asked the Supreme Court to consider whether a government violates the First Amendment by requiring a religious agency that wants to participate in the foster care system to take actions and make statements that directly contradict the agency’s religious beliefs.
In February, the Supreme Court agreed to hear the case.
Business Groups File Brief
In August, 32 companies—including Apple, Bristol Myers Squibb, Glaxo Smith Kline, Google, HP, Levi Strauss & Co., Macy’s, New York Life, Nike, Sumitomo Mitsui Banking Corp., Sun Life and Twitter—filed a friend-of-the-court brief opposing all forms of discrimination.
They maintained that the exemptions from nondiscrimination laws sought by CSS were likely to have adverse impacts for their businesses.
These companies would find it more difficult to recruit, retain and assign employees to areas where the only government contractor in town refused to serve them, the brief stated. A ruling for CSS also would create an unworkable array of religious exemptions to nondiscrimination laws that would make commercial transactions difficult to navigate, they wrote. In addition, CSS’ theory would make it possible for contractors to claim broad exemptions from valid contractual requirements, they said.
Broad exemptions to nondiscrimination laws can result in discrimination against people based on their religious beliefs, the brief added. An exemption granted by the South Carolina Department of Social Services and the U.S. Department of Health and Human Services permits one of the state’s largest foster care agencies to reject any foster care applicants who are not evangelical Christians. A Jewish couple who applied to be foster parents described their denial as “humiliating” and a Unitarian Universalist couple found the experience “hurtful and insulting,” the brief said.
LGBTQ foster parent applications have been denied in Texas and Michigan, among other places, the brief noted. The companies’ employees “thrive and contribute to the overall success of their employers when they are free of discriminatory treatment that undermines their dignity,” the brief stated.
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CSS’ brief said no same-sex couples had approached CSS to adopt foster children. “This means that even though no same-sex couples had asked to work with the Catholic Church, the foster families that actually chose to work with the church cannot welcome new children into their homes at a time when Philadelphia has an admittedly urgent need for more foster parents,” it stated. “It is no exaggeration to say that the decision below threatens the future of Catholic foster and adoption agencies throughout the country. In Boston, San Francisco, Buffalo, the District of Columbia and the State of Illinois, Catholic charities have already been forced out of foster care and adoption,” the brief said. “Many agencies have been forced to close before litigation can run its course, and therefore protection for petitioners here is of outsized public importance.”
“Shouldn’t the city get to strike the balance as it wishes when it comes to setting conditions for participating in what is, after all, its foster program?” asked Chief Justice John Roberts Jr. at the outset of oral arguments.
Lori Windham, senior counsel for Becket in Washington, D.C., argued on behalf of CSS that the normal free-exercise-clause analysis should apply.
“How many children are awaiting placement in foster homes in Philadelphia?” Justice Samuel Alito Jr. asked.
At the time intake into CSS was frozen, the number of children was 250, Windham responded.
When asked by Justice Brett Kavanaugh whether CSS would refer same-sex couples to an agency that permits them to participate in their programs, Windham said CSS would. This and CSS’ assertion that no same-sex couples have come to the agency asking to participate in its foster care program demonstrates that “this is a system that has worked effectively and worked well for many years,” she said. “This is an unnecessary conflict.”
Arguing on behalf of Philadelphia, Neil Katyal, an attorney with Hogan Lovells in Washington, D.C., stated, “This is, as the chief justice said, the city’s own program and its own wards of the state. The government has broad powers to impose conditions on contractors like CSS that stand in the government’s shoes performing government functions.”
“If a foster child requested not to be placed with a same-sex couple, would you take that into consideration in placing the child?” Roberts asked.
“That’s at a very different stage. That’s at a matching stage,” Katyal answered. At that point, the child’s best interests are controlling.
“Don’t you think it’s in the best interests of the child to also have a pool that is beneficial to the child?” asked Justice Clarence Thomas.
“Absolutely,” Katyal responded. Many foster children identify as LGBTQ and discriminating based on sexual orientation would undermine the ability of the program to operate, he said.
Justice Sonia Sotomayor asked if there was any evidence the city had placed fewer children since CSS has not been part of the program.
No, Katyal answered. “In fact, the district court in the record found the opposite. And that’s also true in other jurisdictions that have adopted nondiscrimination policies, such as D.C. and Illinois,” he said.
This case is Fulton v. City of Philadelphia.