Pro-LGBT demonstrators rally outside the Supreme Court in 2019. Today’s high court decision favored a Catholic agency seeking not to unite children with gay foster parents, but it did not radically shift the battlefield in the clash between LGBTQ rights and religious liberty. Allison Stevens/Georgia Recorder
A unanimous decision by the U.S. Supreme Court Thursday handed a victory to a Philadelphia Catholic organization fighting with the city to continue rejecting applications from prospective foster parents who are in same-sex relationships.
The decision falls short of a decisive win, either for those who seek to uphold religious liberty or those who champion LGBTQ rights, but it leaves the doors open for further court battles down the line.
“This is not about the ultimate conflict between the merits and the substance of the religious objector and their religious rights under the Constitution to be absolved from non-discrimination laws at large,” said Anthony Michael Kreis, a constitutional law professor at Georgia State University. “What this was about was the particular process that the city of Philadelphia had adopted.”
After a 2018 newspaper story detailed the practice of the group called Catholic Social Services of not placing foster children with same-sex families, Philadelphia told the agency they would no longer cooperate with them if they did not change their policy. Though the city had a process for exempting organizations, it did not offer the exemption to Catholic Social Services.
That decision violated a 1990 court precedent, Employment Division v. Smith, which says that laws that sometimes burden religious freedom are usually constitutional as long as they apply to everyone equally.
“In theory, the city could go back to the drawing board and, the next time renewals come out, they could just put in a blanket black-and-white rule that says nobody can discriminate, which wouldn’t put any power in a bureaucrat’s hand, it wouldn’t treat anybody differently. Everybody would be 100% subject to the same rules, and that would be that,” Kreis said.
Religious liberty activists are happier with the decision than LGBTQ advocates, but total victory would have meant the elimination of the Smith precedent.
Conservative Justices Samuel Alito, Clarence Thomas and Neil Gorsuch concurred in the decision but argued the court should have taken that extra step.
“This decision might as well be written on the dissolving paper sold in magic shops,” Alito wrote. “The City has been adamant about pressuring CSS to give in, and if the City wants to get around today’s decision, it can simply eliminate the never-used exemption power. If it does that, then, voilà, today’s decision will vanish—and the parties will be back where they started.”
“Smith committed a constitutional error,” Gorsuch wrote. “Only we can fix it. Dodging the question today guarantees it will recur tomorrow. These cases will keep coming until the Court musters the fortitude to supply an answer. Respectfully, it should have done so today.”
Though this case is not set to have an immediate impact on couples looking to adopt a child in Georgia, it highlights the push and pull between elements of the state government eager to push religious liberty legislation and local governments seeking to enshrine LGBTQ protections in local ordinance.
In 2016, then-Gov. Nathan Deal, a Republican, vetoed a religious liberty bill that detractors said amounted to legalized discrimination, provoking the anger of the evangelical wing of his party. The next year, a House bill to modernize the state’s foster and adoption system tanked suddenly after language was added in the Senate that would have allowed faith-based adoption agencies to ban adoptions by LGBTQ couples.
“I am always concerned that we could see efforts to further discriminate specifically against LGBT folks, and especially within the adoption and foster care system here in Georgia. That’s one of our chief concerns,” said Georgia Equality Executive Director Jeff Graham.
Graham said he is worried by the ruling but relieved that it is not more broad. He said the decision and Georgia’s lack of state protections against anti-LGBTQ discrimination highlight the importance of local protections.
“We need to reengage a strong conversation of broad-based civil rights protections for all people here in Georgia, one of only three states that does not have such protections now, and we need to continue our push on the municipal level so that more cities and counties join the 12 already here in Georgia that offer these clear protections, not just for members of the LGBT community, but for immigrants, for people of color for women, for veterans, and yes, for people of faith.”
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