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Supreme Court Won’t Enter Fight Over LGBTQ Foster Care Placements—But Gorsuch and Alito Want To (Updated)

Jessica Mason Pieklo

The one-page order keeps in place a lower court ruling that the city of Philadelphia can require social service agencies with city contracts to comply with nondiscrimination laws.

UPDATE, February 24, 2020, 9:46 a.m.: The U.S. Supreme Court on Monday said it would accept the Catholic Social Services case, determining “whether taxpayer-funded agencies can use religion as a license to discriminate,” according to the ACLU. 

The U.S. Supreme Court on Thursday denied an emergency request by Catholic Social Services (CSS) to block a lower court ruling that said the city of Philadelphia can require foster care agencies with city contracts to comply with nondiscrimination policies, including placing children with LGBTQ families.

The Philadelphia Department of Human Services in March suspended foster care referrals to Catholic Social Services after learning the agency was refusing placements with LGBTQ families and allegedly requiring potential families to provide a “pastoral reference” before they could be considered for placement. CSS filed a lawsuit in May arguing the city’s decision to suspend referrals was unconstitutional because it targeted CSS for its religious beliefs.

“The City is penalizing Catholic Social Services, in violation of its contract and state and federal law, because the agency has Catholic beliefs about same-sex marriage,” the complaint states.

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In July, a federal court in Pennsylvania disagreed and ruled Philadelphia can require foster care agencies with city contracts, like CSS, to abide by its nondiscrimination policies. The ruling was the first from a federal court to hold that government-contracted child welfare agencies can’t exclude same-sex couples or others who don’t meet an agency’s religious test from fostering children. CSS appealed that decision and asked the Supreme Court to step in and overturn the July decision while the appeal proceeds.

Thursday’s order declined to do so. But Associate Justices Samuel Alito and Neil Gorsuch indicate they would have granted the request and blocked the lower court ruling while the appeal proceeds.

“It’s not a surprise that the Court denied the request,” Leslie Cooper, deputy legal director of the ACLU LGBT & HIV Project, said in an emailed statement to Rewire.News. “Catholic Social Services is asking the courts to do something extraordinary—to say that a faith-based organization that receives government funds to perform a government service is entitled to ignore the contract requirements and dictate how those services are provided. Philadelphia requires its contracted foster care agencies to accept all qualified families. CSS doesn’t have a constitutional right to override the City’s decision about how to operate its public child welfare system.”

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