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Supreme Court Smacks Down Philadelphia’s Attempt To Blacklist Catholic Adoption Organization Over Gay Marriage Opposition

same-sex adoption

The Supreme Court unanimously smacked down Philadelphia’s attempt to force a Catholic adoption agency to certify same-sex couples as foster parents.


The U.S. Supreme Court unanimously smacked down the city of Philadelphia’s attempt to force a Catholic adoption agency to certify same-sex couples as foster parents as a violation of the Free Exercise Clause in the First Amendment on Thursday.

Philadelphia originally said in 2018 that it would no longer refer foster children to Catholic Social Services, which has partnered with the city’s foster care program for more than 50 years, due to the agency’s refusal to recognize same-sex couples. The city said this “violated both a non-discrimination provision in the agency’s contract with the City as well as the non-discrimination requirements of the citywide Fair Practices Ordinance,” which only applies if the “goods, services, facilities, privileges, advantages or accommodations are extended, offered, sold, or otherwise made available to the public.”

As noted in the background for the ruling, however, “other private foster agencies in Philadelphia will certify same-sex couples, and no same-sex couple has sought certification from CSS.”

SCOTUS justices agreed to overturn previous rulings from the district court and the Third Circuit based on this information, saying, the “City’s actions burdened CSS’s religious exercise by forcing it either to curtail its mission or to certify same-sex couples as foster parents in violation of its religious beliefs.”

“The Court recognized that it is not the government’s place to exclude religious agencies because of their religious beliefs and the court also recognized that the community is stronger and that more children are being helped when religious agencies are allowed to be part of the solution,” Becket Fund senior counsel Lori Windham, who argued on behalf of the CSS, said during a press conference on Thursday. 

In the majority opinion, Chief Justice John Roberts, along with Justices Stephen Breyer, Sonia Sotomayor, Elena Kagan, Brett Kavanaugh, and Amy Coney Barrett, noted the city’s long relationship with the religious agency and explained why it was wrong for the government to “fail to act neutrally when it proceeds in a manner intolerant of religious beliefs or restricts practices because of their religious nature.”

“CSS seeks only an accommodation that will allow it to continue serving the children of Philadelphia in a manner consistent with its religious beliefs; it does not seek to impose those beliefs on anyone else,” Roberts wrote. “The refusal of Philadelphia to contract with CSS for the provision of foster care services unless it agrees to certify same-sex couples as foster parents cannot survive strict scrutiny, and violates the First Amendment.”

In multiple other concurring opinions, justices debated whether the current case’s outcomes warrant more action and a potential reversal of Employment Division, Department of Human Resources of Oregon v. Smith. 

In her concurring opinion supported by Kavanaugh and Breyer, Barrett expressed wariness about reversing Smith, but Justices Neil Gorsuch, Samuel Alito, and Clarence Thomas all said Smith should have been overruled.

Several religious liberty groups celebrated the decision while others called for more action on pending cases.

“Every child in need of a forever home deserves the chance to be adopted or cared for by a foster family. That’s what it means to keep kids first,” Alliance Defending Freedom General Counsel Kristen Waggoner said in a statement. “The Supreme Court’s decision today allows that to continue happening. The government can’t single out people of certain beliefs to punish, sideline, or discriminate against them. We’re grateful for the good decision today consistent with that principle. And so now is the perfect time for the high court to address a religious freedom question that has been pending for years in Arlene’s Flowers, the case of Washington floral artist Barronelle Stutzman. She has waited far too long for justice — now is her time.”