Faith, LGBTQ Rights Collide At Supreme Court At issue in the case is the rights of a city to enforce its anti-discrimination policies in contracting against the rights of religious groups.


Faith, LGBTQ Rights Collide At Supreme Court

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Elections come and go, but Supreme Court decisions can last forever. One of those potentially pivotal cases is before the court today. It's a case that pits anti-discrimination laws against religious rights. NPR legal affairs correspondent Nina Totenberg reports.

NINA TOTENBERG, BYLINE: There really are no bad guys in this story. The City of Philadelphia has protective custody of about 5,000 children who've been abused or neglected. The city contracts with private agencies to care for these children in group homes and for the certification, placement and care of children in individual foster care homes. Among the 30 private agencies that do this work is Catholic Social Services, affiliated with the Catholic archdiocese, which has contracted with the city for these services for over 50 years.

But in 2018, the Philadelphia Inquirer disclosed that Catholic Social Services did not certify and place children in the homes of married same-sex couples. Ultimately, the city stopped placing children in individual homes through CSS. CSS sued, contending that by cutting off its future placements, the city was denying CSS and its families the free exercise of their religious rights. Two lower courts ruled in favor of the city, and CSS appealed to the Supreme Court, which will hear arguments in the case today. Joining the suit are two foster parents, both single mothers, both African American and Catholic. Sharonell Fulton has fostered 40 children over 25 years.

SHARONELL FULTON: The biggest thrill that I get is when they're all sleep and I can walk through and look in their little faces and check their dirty hands. And I say yeah, I got this. This is what I want to do. And I wouldn't be able to do it without Catholic Social Services.

TOTENBERG: Toni Simms-Busch, a child advocate in Philadelphia, has fostered five children, adopting the last two, brothers who are now 2 and 4.

TONI SIMMS-BUSCH: It is taking away my right as a religious person that I can't foster or adopt through an agency who has a shared belief.

TOTENBERG: There are, of course, other wonderful foster parents who are not affiliated with CSS. Among them are same-sex married couples like Lou GrowMiller and his husband, Michael, who have fostered children over 10 years, adopting the last two, a girl now 9 and a boy now almost 7. Lou, a social worker, sees the CSS refusal to work with gay couples as making no sense when the need for foster parents is so great.

LOU GROWMILLER: Why would that be a reason to deny people to be a temporary safe haven to children - vulnerable children and kids who need it? I guess my question is, who's next? If I was not a Catholic or a Christian, would they turn me down?

TOTENBERG: The legal questions before the Supreme Court today are basically two. First is whether Philadelphia's decision not to renew some of its contracts with CSS are within the city's rights. Lawyer Lori Windham of the Becket Fund for Religious Liberty will tell the Supreme Court today that the city, by canceling the contract for future placements, is violating the Constitution's guarantee for the free exercise of religion.

LORI WINDHAM: At bottom, this is about the City of Philadelphia trying to exclude Catholic Social Services from work it's been doing for two centuries.

NEAL KATYAL: Nothing could be further from the truth.

TOTENBERG: Lawyer Neal Katyal will be representing the City of Philadelphia.

KATYAL: We adore CSS. We've been partners with them for years and years. And indeed, right now, we're giving them over $17 million a year in contracts for congregate foster care.

TOTENBERG: That's group care homes run by CSS where there's no discrimination question at all. The city also continues to support those children already placed by CSS in private foster care homes, but it has not renewed the contract for future home foster care placements because, as the city sees it, CSS has violated the terms of its contract. Again, lawyer Katyal.

KATYAL: You can't on Monday sign a contract that says we won't discriminate and on Tuesday, go ahead and discriminate.

TOTENBERG: CSS counters that it would be happy to refer same-sex couples to other agencies, and there are 29 others operating in Philadelphia. Until now at least, the Supreme Court has viewed government as acting at the height of its powers when it contracts with a private entity for services. In 1990, the Supreme Court ruled that when a neutral law is enforced in a generally applicable way, it is presumptively legitimate, even if it has an incidental adverse impact on some group of citizens.

The author of that opinion was the late Justice Antonin Scalia, a conservative icon and devout Catholic. Now Catholic Social Services is asking the Supreme Court to reverse that decision because it sees the nondiscrimination provision in the city contract as forcing CSS to endorse same-sex marriage in violation of their faith. Several of the Supreme Court's most conservative justices have urged revisiting Scalia's decision. And the court's newest justice, Amy Coney Barrett, served on the board of her children's religious school, which, according to The Associated Press, did not admit children of same-sex couples.

Nina Totenberg, NPR News, Washington.

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