The U.S. Supreme Court on Wednesday
heard arguments in its first major LGBT rights case since the
swearing-in of Associate Justice Amy Coney Barrett.
With its new 6-3 conservative majority,
the Supreme Court appears poised to rule in favor of a religiously
affiliated foster care agency that is seeking a First Amendment right
to reject couples based on their sexual orientation.
The high court in February agreed to
hear Fulton v. City of Philadelphia on the day after the
In 2018, Philadelphia threatened to
terminate its contract with Catholic Social Services (CSS) after it
learned that the agency was refusing to place children with gay and
lesbian couples, a violation of the contract it signed with the city.
Catholic Social Services sued the city, claiming a First Amendment
right to refuse placements with gay families for religious reasons.
The agency turned to the Supreme Court after losing its case in lower
Attorneys for the city argued in a
brief that the U.S. Constitution “does not entitle CSS to perform
those services on the city's behalf, with City funds, pursuant to a
City contract in a manner that the City has determined would be
harmful to its residents and the thousands of children it has a duty
During Wednesday's hearing, Justice
Clarence Thomas appeared to question whether LGBT couples make
“Don't you think it's in the best
interest of the child to also have a pool [of suitable homes]? That
is beneficial to the child?” Thomas asked. “I don't understand
why that isn't also in the best interest of the child.”
Justice Samuel Alito suggested that the
city was more interested in silencing the agency's message against
same-sex marriage than supporting gay couples.
“If we are honest about what's really
going on here, it's not about ensuring that same-sex couples in
Philadelphia have the opportunity to be foster parents. It's the fact
that the city can't stand the message that Catholic Social Services
and the archdiocese are sending by continuing to adhere to the
old-fashioned view about marriage,” Alito said.
Justice Brett Kavanaugh, who was
appointed to the bench by President Donald Trump, also signaled
skepticism against the city, saying that it had “created a clash”
and had been “looking for a fight.”
The Trump administration has sided with
Catholic Social Services. In a brief filed in the case, the Trump
administration argued that the city had “impermissibly
discriminated against religious exercise” with its
non-discrimination requirement. On Wednesday, government lawyer Hasim
Moopan argued that the city was “cutting off homes from the most
vulnerable children in the city to spite the Catholic Church.”
Barrett and Justice Neil Gorsuch, both
of whom were appointed by Trump, also questioned the city's
arguments, with Gorsuch noting that Philadelphia had shifted from
arguing that CSS had violated its contract to saying that its actions
were prohibited under the city's non-discrimination ordinance.
Catholic Social Services is being
represented by the Becket Fund for Religious Liberty, which argues
that LGBT protections interfere with religious freedom.
A decision is expected in January.