Religious Rights vs. LGBTQ+ Rights on Adoption: Philadelphia Foster Care Case (Updated 2021)

The global divide on homosexuality still persists but over the past two decades, there has been an increasing acceptance in many countries according to a recent survey conducted by PEW Research Center last June 2020. Specifically in the US, the numbers have jumped from 42% in 2007 to 72%. 

These numbers are directly and substantially affected by various factors such as age, education, income, and in some instances, gender. In addition to personal factors, patterns have also emerged on an institutional level.

In some countries surveyed, the attitude regarding this topic can be strongly correlated to a country’s wealth — that is, wealthier and more developed economies are generally more accepting of homosexuality. 

The two more commonly-known factors that swing the numbers are political ideology and religious affiliation. The political left and religious “nones” or unaffiliated ones are generally more accepting of homosexuality compared to their counterparts. 

Historically, politics and religion have always been on conflicting ends of this issue and landmark cases in the Supreme Court like Employment Division v. Smith in 1990 had cemented the limited ability of people to seek exemptions from laws that are neutral and generally applicable.

Specifically for this case, the Supreme Court ruled in favor of the Employment Division citing that there is no First Amendment violation and also expressed that “an individual’s religious beliefs do not excuse him or her from complying with an otherwise valid State law.”

Furthermore, there have always been complications when LGBTQ+ rights are involved citing the case of the Colorado baker who won his case in a narrow ruling with no solid resolution whether religious people catering services for people who identify as LGBTQ+ is discriminatory and steps the bounds of First Amendment rights. 

Last week, the US Supreme Court with the newly-appointed conservative judge Amy Coney Barrett was set to hear the arguments in a dispute between the City of Philadelphia and the Catholic Social Services (CSS), part of the Archdiocese of Philadelphia, over the refusal of the state “to place children for foster care with a Catholic Church-affiliated agency that excludes same-sex couples from serving as foster parents,” in a report by Reuters. 

According to Mark Rienzi, a lawyer with the Becket Fund for Religious Liberty, which represents the Catholic agency, “Philadelphia demands that a religious agency, an arm of a church, speak and act according to Philadelphia’s beliefs.

If it does not, Philadelphia will rid itself of the meddlesome agency.” CSS claims that “it can’t match foster children with same-sex households without violating its religious beliefs.”

The Supreme Court which had been a grandstand and ally of LGBTQ+ rights in recent years had legalized same-sex marriage in 2015 (Obergefell v. Hodges) stating that “state bans on same-sex marriage and on recognizing same-sex marriages duly performed in other jurisdictions are unconstitutional under the due process and equal protection clauses of the Fourteenth Amendment to the U.S. Constitution.”

Following that ruling, the adoption of children by same-sex couples has also been legalized nationwide though it still varies from state to state. 

In 2018, the lower court had already ruled that the city’s anti-discrimination measures were applied with no bias and no religious rights had been violated and CSS was not entitled to an exemption. A year later, its contracts had also specifically prohibited discrimination in any form against potential foster parents. 

Barrett who is a strong proponent of religious rights and had served years as a board trustee at Trinity schools which barred gay and lesbian teachers and forbid allowing children with same-sex parents is given an opening to recognize “broader religious rights under the Constitution building on other rulings in recent years in that vein” according to Reuters. Especially that the Supreme Court is now a 6-3 conservative majority. 

Cynthia Figueroa, Philadelphia’s deputy mayor for children and families, said, “If individual organizations can begin to choose to discriminate against whom they want to serve, then it does begin to set an unfortunate precedent.”

Supporters of the City also argued that a ruling against Philadelphia will leave disastrous implications for more than 400,000 children in foster care according to Metro Weekly.

There are chances that many will be denied opportunities to find permanent homes as the options for foster parents are reduced by excluding LGBTQ+ couples as they are nonconforming to an agency’s religious beliefs. 

Additionally, CSS also asks the Court to overturn the 1990 ruling on Employment Division v. Smith authored by the late Justice Antonin Scalia, Barrett’s conservative mentor. Even if the Court does not go as far to overturn the decision, CSS seeks to make it easier for religious entities “to mount defenses when the government accuses them of violating certain types of laws.”

According to the Movement Advancement Project, a group backing gay rights, 11 out of the 50 states now allow private agencies to refuse the placement of children under the foster care of same-sex couples. 

This will be the first major case to be heard by Barrett who was confirmed to court last October 26.