The U.S. Supreme Court ruled unanimously Wednesday that the city of Philadelphia violated the Constitutional rights of Catholic Social Services (CSS) when the city stopped working with CSS because it would not certify same-sex couples as foster parents.

But the 9-0 opinion was written so narrowly that it has left conservatives—including several of the court’s justices—dissatisfied.

The case, called Fulton v. City of Philadelphia, came about after Philadelphia’s city council passed a resolution in 2018 that caused the city to stop all referrals to CSS because in its view, the policies of CSS entailed “discrimination that occurs under the guise of religious freedom.”

A federal district court and the Court of Appeals for the 3rd Circuit both ruled against CSS, but the Supreme Court, in an opinion written by Chief Justice John Roberts, reversed those rulings. “CSS seeks only an accommodation that will allow it to continue serving the children of Philadelphia in a manner consistent with its religious beliefs,” Roberts wrote. “It does not seek to impose those beliefs on anyone else.”

But the unanimous ruling, observers say, came at the expense of an opinion written so narrowly that it might not carry much weight in the long run.

Instead of a blanket ruling that the government should not try to force religious organizations to jettison their beliefs in order to receive government referrals, the ruling centered on the existence of exemptions in the city’s policy. Although Philadelphia accused CSS of violating city policy by rejecting same-sex couples as foster parents, it maintained a system by which the city could grant individual exemptions at the discretion of the Department of Human Services commissioner.

Even though no such exemptions had ever been granted, Roberts said the mere fact that the city allows for such exemptions undermines its argument that there can be no exceptions to its nondiscrimination policy.

Justice Samuel Alito, in a 77-page concurring opinion joined by justices Clarence Thomas and Neil Gorsuch, said he was disappointed that the court did not go further. Although he agreed with the result, he called the majority opinion “a wisp of a decision that leaves religious liberty in a confused and vulnerable state.”

He pointed out: “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.”

 

Above: Toni Simms-Busch is a former social care worker and foster mom who partners with Catholic Social Services.

Photo: Courtesy of Becket