WASHINGTON — On Wednesday, the U.S. Justice Department filed a brief asking the U.S. Supreme Court to allow religious-base adoption agencies to discriminate against LGBTQ families.
The Washington Blade reported that U.S. Solicitor General Noel Francisco and other Justice Department attorneys told the court that the City of Philadelphia has “impermissibly discriminated against religious exercise” under the First Amendment by requiring Catholic Social Services to abide by a contract requiring LGBTQ non-discrimination practices in child placement.
From the Washington Blade:
“Governmental action tainted by hostility to religion fails strict scrutiny almost by definition,” the brief says. “This court has never recognized even a legitimate governmental interest — much less a compelling one — that justifies hostility toward religion.”
The U.S. government isn’t a party to the case, known as Fulton v. City of Philadelphia, so the brief is completely voluntary. In justifying the brief before the Supreme Court, the filing makes the case the Justice Department has a compelling interest to intervene.
“This case concerns the application of the Free Exercise Clause of the First Amendment to the City of Philadelphia’s termination of a contract allowing Catholic Social Services to help place children in the City with foster parents, on the basis of Catholic Social Services’ unwillingness to endorse same-sex couples as foster parents,” the brief says. “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.”
The case came about after the City of Philadelphia learned in March 2018 that Catholic Social Services, which the city had hired to provide foster care services to children in child welfare, was refusing to license same-sex couples despite a contract prohibiting these agencies from engaging in anti-LGBTQ discrimination.
When the city said it would terminate the contract, Catholic Social Services sued on the basis it can maintain the contract and refuse placement into LGBTQ homes for religious reasons under the guarantee of free exercise of religion under the First Amendment.
A federal judge in Pennsylvania and the U.S. Third Circuit Court of Appeals denied a preliminary injunction in favor of Catholic Social Services. The Third Circuit, which declined to revisit the case “en banc” before the full court, based its decision in part on the 1990 ruling in Employment Division v. Smith.
After the Becket Fund for Religious Liberty, which is representing Catholic Social Services, filed a petition for certiorari before the Supreme Court, justices in February agreed to take up the case.