As we reported yesterday, the Supreme Court has agreed to hear Fulton v. City of Philadelphia, a case related to the constitutionality of faith-based discrimination in child welfare. Some religiously affiliated providers, lead among them Catholic Social Services (CSS), want that right. Many other faith-based entities are happy to serve adults and youth who do not follow the beliefs of the organization’s faith.
Many of the headlines about this case have keyed in on discrimination against the LGBTQ community, including this column, and justifiably so. It is not a coincidence that 11 states have passed legislation guaranteeing the right to discriminate by faith-based child welfare providers since same-sex marriage became the law of the land. But these providers would also be free to turn away a single person looking to adopt, or perhaps choose not to serve Muslim people, or even just a different denomination of Christian.
So what will the court’s decision mean in this case? First, it is important to be clear on the precise issue that the Supreme Court will look at.
It is not going to be a referendum on whether faith-based groups can generally pick and choose who they serve. They have that right anywhere, as long as the money they are using is their own. A prime example we mentioned in an article yesterday: Arkansas’ The CALL, which recruits and trains many of the state’s foster parents but does not take public funding for it.
It is also not a referendum on the use of taxpayer dollars to support faith-based providers that discriminate. Eleven states have expressly stated in law that this is fine with them, and most other states don’t have a law pushing hard against that idea.
But some states, counties and cities do have laws and policies mandating that child welfare providers agree to non-discrimination requirements in order to be funded. If you want to get a contract, you cannot be selective in which type of adults or kids you are willing to serve in this system.
And that is what this case is about. Catholic Social Services, and its counsel Becket Fund for Religious Liberty, want the court to state that even when non-discrimination requirements are present, an organization would still be able to discriminate based on its religious underpinnings.
Boiling that down to a simple question: Is religiously-based discrimination immune to the rules of a general non-discrimination policy in child welfare?
Should the court rule in favor of Catholic Social Services, there is really nothing stopping a state child welfare agency from establishing a tacit block on same-sex fostering and adoption. If all of a state’s providers recruiting and training those candidates were faith-based organizations that would not recruit a gay couple, that isn’t substantively different than the not-so-old laws that used to ban them outright.
All of the state laws passed to shield faith-based child welfare providers were passed with at least lip service to the fact that they were not passed to keep people out. Here is what former Oklahoma Gov. Mary Fallin (R) said after she signed such a law:
Under Senate Bill 1140, the state will not be in any way restricting current practice allowing LGBTQ individuals and couples fostering or adopting. It does not ban same-sex adoption or foster care in Oklahoma. Instead, the bill will help continue Oklahoma’s successful placement of children with a broad array of loving families and basically maintain the status quo by setting forth in statute practices which have successfully worked for the best interest of Oklahoma children.
A favorable ruling for CSS doesn’t make a pseudo-ban probable, but it makes it possible.
In states or counties with non-discrimination requirements, it also seems that the discussion will then turn to the selection of child welfare contractors and providers. A child welfare agency would now have to allow faith-based providers under contract to follow religious principles in accepting clients. But could it simply choose not to contract with any provider that might do so?
Take Philadelphia for example, the municipality at the heart of this case. The Philadelphia Department of Human Services obviously knows that Catholic Social Services will discriminate if it ever gets a child welfare contract again. So can it just not ever consider them again?
Probably a slippery slope that will slide both parties right back into court.
Another possible outcome if the court rules for CSS:
Now, what happens if the court rules against CSS and Becket? The guess here is that not a whole lot changes overnight, even in Philadelphia, where CSS is not a current child welfare provider. But the decision would shine a bright-hot light on the impact of having a firm non-discrimination requirement, and could spur interest in getting more of them into law or at least into policy on the state and local level.
A pro-Philadelphia decision would also mean that such non-discrimination requirements trumped state law. So in a state with a faith-based protection law, a child welfare agency that required the signing of non-discrimination agreements could hold providers to that because the enforcement of a signed contract could not be viewed as an adverse action.
And as for those 11 states with faith-based protection laws, this decision probably won’t have any direct consequence. There are two states (Michigan and South Carolina) where the constitutionality of those laws are being challenged right now, according to the ACLU, and it will be that type of direct challenge which ultimately decides their fate.