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The Trump administration has filed a brief with the U.S. Supreme Court arguing that child placement agencies should be allowed to continue receiving taxpayer dollars, even if they discriminate against same-sex couples.
In the brief, the administration argues that the city of Philadelphia’s decision to terminate a contract with Catholic Social Services because of the agency’s refusal to place foster care children with same-sex couples violates the Free Exercise Clause of the First Amendment.
The city decided to terminate its contract with CSS in 2018 after learning of its refusal to place children with prospective parents whom it deems objectionable based on its religious beliefs, including, but not limited to, same-sex couples, divorcees, and people of non-Catholic backgrounds.
All agencies that contract with the city to provide services must abide by its nondiscrimination policy, which prohibits discrimination based on sexual orientation and gender identity, the city of Philadelphia stated at the time.
CSS sued over the termination in June 2018, arguing that forcing them to abide by the policy, like all other agencies do, is a violation of their religious freedom and contrary to their religious beliefs that marriage should be reserved only for unions of one man and one woman.
In response, the American Civil Liberties Union and ACLU of Pennsylvania intervened in the case in support of the city and same-sex couples who would otherwise be turned away if agencies like CSS were allowed to discriminate.
A month later, a federal district court judge ruled against CSS, finding that the city’s nondiscrimination requirement applies equally to all contractors, and that the city has an interest in ensuring there is a broad and diverse pool of foster families available to take in children who are wards of the foster care system.
Judge Petrese B. Tucker also rejected the argument that CSS was targeted for its religious beliefs, noting that the city has provided funding to another agency that objects to same-sex marriage but does not discriminate against same-sex couples.
In April 2019, the 3rd U.S. Circuit Court of Appeals unanimously found that the city’s nondiscrimination policy did not unlawfully discriminate against CSS, and that its termination of the contract did not amount to religious persecution or bias. CSS then appealed the case to the U.S. Supreme Court, which agreed to review the case in February 2020, with plans to hear oral arguments sometime in the fall.
In its brief supporting CSS’s position, the Trump administration argued that Philadelphia “impermissibly discriminated against religious exercise in its approach to exemptions.”
“This Court has long recognized that a law is not neutral and generally applicable if it allows government officials to grant individualized exemptions, because the application of such a rule in any particular case depends on a government official’s discretionary decision to grant or withhold an exemption,” the government writes. “A law also is not neutral and generally applicable if it excludes from its scope secular conduct that undercuts the government’s asserted interests to a similar or greater degree than the religious conduct that it covers.”
The government also claims that the city’s actions “reflect unconstitutional hostility” toward CSS’s religious beliefs, writing: “The City singled out religious organizations for investigation; suggested that religious beliefs are merely a pretext for discrimination; imposed unnecessarily severe restrictions on Catholic Social Services’ participation in the foster care program; and tried to persuade Catholic Social Services that its understanding of Catholic doctrine was outmoded and inconsistent with the views of Pope Francis, as the City understood them. The City has thus unconstitutionally ‘passe[d] judgment upon or presuppose[d] the illegitimacy of religious beliefs and practices.”
The city, the Support Center for Child Advocates, and Philadelphia Family Pride are expected to submit their own briefs defending the city’s policy and decision to terminate its contract with CSS, which are due on Aug. 13. Other groups wishing to submit amicus briefs on the city’s behalf must submit those to the Supreme Court by Aug. 20.
Supporters of the city argue that a Supreme Court ruling in favor of CSS would have disastrous implications for the more than 400,000 children in foster care, some of whom will be denied opportunities to find more permanent placements because the pool of available foster parents has been decreased by excluding those who don’t conform to an agency’s stated religious beliefs.
They also argue that it would open the door to discrimination in other government services, as any individual, business, or agency will be allowed to fabricate a set of religious or moral beliefs justifying their decision to discriminate against those seeking to access or utilize certain services.
“The Trump administration submitted a brief to the Supreme Court on the side of a taxpayer-funded agency that is seeking a constitutional right to turn away people who fail to meet the agency’s religious criteria,” Leslie Cooper, the deputy director of the ACLU’s LGBT & HIV Project, said in a statement. “While this case involves rejecting LGBTQ families, if the Court accepts the claims made in this case, not only will this hurt children in foster care by reducing the number of families to care for them, but anyone who depends on a wide range of government services will be at risk of discrimination based on their sexual orientation, religion or any other characteristic that fails a provider’s religious litmus test.
“Our government provides critical social services to people in need, including through partnerships with private secular and religious organizations,” Cooper added. “Discrimination has no place there. We look forward to responding to these claims on August 13 when we file our response.”
The LGBTQ media advocacy organization GLAAD also responded to the government’s filing.
“In a time of such turmoil and unrest in this country, the Trump administration has decided to prioritize scoring points with anti-LGBTQ activists by continuing to discriminate against LGBTQ families,” GLAAD President and CEO Sarah Kate Ellis said in a statement. “Research has shown LGBTQ families offer the same love, protection and support as any other family, and to deny them the same chance to provide a loving, stable home to a child is appalling. The Trump administration’s new brief to the Supreme Court not only illustrates their refusal to follow credible science and research, but also how they continue to drive an anti-LGBTQ agenda forward at the expense of our children.”
Editor’s note: This story was updated to include reaction from GLAAD.
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