The battle between religious freedoms and equal rights is escalating in the United States, due to an adoption agency’s refusal to work with same-sex couples.
In 2018, the City of Philadelphia terminated a contract with a taxpayer-funded agency, Catholic Social Services, citing discriminatory practices when it would not take requests from queer couples.
“What we’ve seen in recent years is an effort to try to use the freedom of religion to push back on those anti-discrimination provisions,” says Paul Smith, a legal professor at Georgetown University, and VP for Litigation at Strategy at the Campaign Legal Center.
“The rule with respect to freedom of religion under our Constitution is that while your freedom cannot be restricted by the government, that doesn’t mean you get to get an exception from any general law that happens to be out there.”
Religious freedoms are guaranteed under the First Amendment to the U.S. Constitution and are frequently used as a way to shield organizations from laws against discrimination.
Catholic Social Services sued the City, arguing if they were to provide services to gay couples, their rights to free speech and religious exercise would be violated. The case was dismissed in District Court, and lost on appeal.
Lawyers have now taken their case to the U.S. Supreme Court, in Fulton vs. City of Philadelphia, and the Trump administration is offering it a political boost.
The United States Department of Justice issued an extensive 35-page brief that serves to play to its conservative religious base, arguing, “The United States has a substantial interest in the preservation of the free exercise of religion.
“It also has a substantial interest in the enforcement of rules prohibiting discrimination by government contractors.”
In 1990, the Supreme Court ruled that states can impose neutral laws on religious groups. The case of Fulton is seen as a step to overturning that decision.
“It’s not at all surprising to see them filing a brief in a case about the conflict between First Amendment free exercise, freedom of religion on the one side and anti-discrimination laws on the other side” Smith said.
In 2017, Jack Phillips, owner of Masterpiece Cake Shop in Lakewood, Colo., refused to make a wedding cake for a gay couple, saying it went against his beliefs.
The case gained national attention after the state claimed Phillips violated Colorado’s Anti-Discrimination Laws, but in a 7-2 victory, the Supreme Court sided with Phillips, saying his religion was shown hostility.
The Philadelphia case is setting the stage for similar arguments that some conservative organizations are hoping will establish a precedent in the fight for religious liberties.
“The Supreme Court precedent set in the Fulton case should be a reaffirmation of the First Amendment protections of religious exercise,” said Mary Beth Waddell, senior legislative assistant at Family Research Council.
The FRC describes itself as a Christian Public Policy Ministry, and Waddell says “Governmental actors have refused to work with or forced the closure of faith-based agencies in numerous states and localities because of their faith.”
The council believes those actions worsen the foster care situation in America “by limiting the agencies and families working to solve it,” according to Waddell.
According to estimates, there are more than 400,000 children in foster care across the country, and Leslie Cooper, deputy director of the American Civil Liberties Union LGBT and HIV Project, says “allowing foster care agencies to exclude qualified families based on religious requirements that have nothing to do with the ability to care for a child such as their sexual orientation or faith would make it even worse”.
A 2018 study from the Williams Institute at UCLA shows that 21 per cent of couples that identify as LGTBQ2 are raising adopted children, compared to 3 per cent who identify as straight.
According to the Movement Advancement Project, 21 states currently have no explicit protections against discrimination in foster care based on sexual orientation or gender identity, while 11 states permit child-welfare agencies to discriminate based on religious beliefs.
Laura McGinnis, media relations manager with PFLAG, says most children in the adoption system have suffered trauma, and discriminating against LGBTQ2 couples hinders the expansion of “the number of qualified, loving households that can provide stability, safety and security for these for these children”.
The Supreme Court of the United States is expected to hear this case in late 2020, but there are concerns of political bias, after President Trump secured two lifetime appointments in the first three years of his presidency, tilting the bench further right.
Queer rights organizations, like PFLAG, argue that adoption agencies should not be able to use the Constitution to shield themselves from anti-discrimination laws.