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A new Supreme Court petition seeks a First Amendment right for Catholic agencies to discriminate against LGBT people. (Washington Blade file photo by Michael Key)

A new petition filed before the U.S. Supreme Court on behalf of a Catholic adoption agency seeking to refuse placement into LGBT homes calls for a ruling that could enable anti-LGBT discrimination in the name of “religious freedom” — even if justices affirm in separate pending litigation LGBT protections are included under federal civil rights law.

The petition was filed Monday by the Becket Fund for Religious Liberty — an organization that takes up religious freedom lawsuits, such as the Hobby Lobby and Little Sisters of the Poor cases — and seeks to establish a First Amendment right for Catholic Foster Services in Philadelphia to refuse to place children into LGBT families.

“Here and in cities across the country, religious foster and adoption agencies have repeatedly been forced to close their doors, and many more are under threat,” the petition says. “These questions are unavoidable, they raise issues of great consequence for children and families nationwide, and the problem will only continue to grow until these questions are resolved by this court.”

The petition presents three questions:

1. Whether free exercise plaintiffs can only succeed by proving a particular type of discrimination claim — namely that the government would allow the same conduct by someone who held different religious views — as two circuits have held, or whether courts must consider other evidence that a law is not neutral and generally applicable, as six circuits have held?

2. Whether Employment Division v. Smith should be revisited?

3. Whether a government violates the First Amendment by conditioning a religious agency’s ability to participate in the foster care system on taking actions and making statements that directly contradict the agency’s religious beliefs?

The case came about after the City of Philadelphia learned in March 2018 Catholic Social Services, which the city had hired to provide foster care services to children in the child welfare, were refusing to license same-sex couples despite a contract prohibiting these agencies from engaging in anti-LGBT discrimination.

When the city said it would terminate the contract, Catholic Social Services sued on the basis it can maintain the contract and refuse placement into LGBT homes for religious reasons under the guarantee of free exercise of religion under the First Amendment.

A federal judge in Pennsylvania and the U.S. Third Circuit Court of Appeals denied a preliminary injunction in favor of Catholic Adoption Agencies. The Third Circuit, which declined to revisit the case “en banc” before the full court, based its decision in part on the 1990 ruling in Employment Division v. Smith, which says states are aren’t required to accommodate otherwise illegal acts in the name of religious liberty under the First Amendment.

A key component of the Becket Fund petition is reconsideration of the Smith decision. Although the petition insists Smith doesn’t support the Third Circuit decision, it says “the propensity of lower courts to read Smith so narrowly is powerful evidence that Smith has confused rather than clarified the law and should be reconsidered.”

Catholic Social Services also seeks a religious right to refuse placement into LGBT homes in a broader sense under the First Amendment — which could affect not just city contracts, but federal non-discrimination law against anti-LGBT discrimination — asserting the current situation “effectively denies CSS a license if it does not speak and act as the government prefers.

A ruling from the Supreme Court on the free exercise claim presented in third question could give justices wriggle room in separate litigation to determine anti-LGBT discrimination is a form of sex discrimination under federal law. Those cases — Bostock v. Clayton County, Zarda v. Altitude Express and EEOC v. Harris Funeral Homes — call on the Supreme Court to clarify whether Title VII of the Civil Rights Act of 1964, which bars employment discrimination on the basis of sex — also applies to cases of anti-LGBT discrimination.

A ruling from the Supreme Court in favor of the idea Title VII covers LGBT people would make Catholic institutions liable if they deem it necessary to fire a worker for being gay, much like Catholic schools have fired gay teachers for entering into same-sex marriages.

Conceivably, if this ruling gives pause to justices like U.S. Chief Justice John Roberts and U.S. Associate Justice Brett Kavanaugh — who are Catholic, but could be swing justice on the Title VII — they could find Title VII applies to cases of anti-LGBT discrimination, but also give Catholic institution an out from the decision in the Fulton case by finding they have a First Amendment right to discriminate.

Meanwhile, the Becket Fund is drawing the 2015 Obergefell decision in favor of same-sex marriage nationwide as evidence of the need for the court to take up the Fulton case.

“Just as no LGBT couples are prevented from marrying because a particular church does not perform same-sex weddings, no LGBT couples are prevented from fostering because a particular church cannot provide an endorsement,” the petition says. “Yet many churches will be prevented from exercising religion by caring for at-risk children, all due to a disagreement with the government about marriage. That is not the live-and-let-live world Obergefell promised.”

The Fulton case has reached the Supreme Court before. Last year, Catholic Social Services sought injunctive relief from the Supreme Court — even before the case had been fully briefed in lower courts — to refuse placement into LGBT homes as its litigation against the City of Philadelphia moved forward. The Supreme Court rebuffed this request, although U.S. Associate Justices Samuel Alito, Clarence Thomas and Neil Gorsuch signaled they would have granted the injunctive relief.

Faced with the prospect of having to place children into LGBT homes — which studies are shown are just as capable of raising children as non-LGBT homes — Catholic Social Services threatens to close down services if it doesn’t get its way.

“Here, if CSS declines the contract, it will be completely excluded from Philadelphia’s foster care system,” the petition says. “It might serve families in other ways, like its residential programs or temporary care for unaccompanied minors, but it cannot support Philadelphia children through the difficult process of entering foster care, finding families who can care for them for weeks to years, and supporting those families as they care for children through the uncertainties of family reunification or adoption.”

The American Civil Liberties Union has intervened in the case and is representing the Support Center for Child Advocates and Philadelphia Family Pride.

Leslie Cooper, deputy director of the ACLU LGBT & HIV project, said adoption agencies shouldn’t be able to obtain taxpayer funds and engage in anti-LGBT discrimination under a religious litmus test at the same time.

“Catholic Social Services wants to force every state and local government to allow exactly that,” Cooper said. “With more than 400,000 children in the foster care system across the country — a quarter of whom are waiting for a family to adopt them — no family willing and able to open their hearts and home to a child should be rejected. When agencies choose to accept taxpayer dollars to provide this critically important government service to children, the needs of children must come first.”

It remains to be seen whether the Supreme Court will take up the case, and if it does whether justices will a render a decision in this case in conjunction with the Title VII litigation. The Supreme Court is out of session for the summer, so this soonest justices could decide whether to take it up is during the long conference in September, which would mean decision in the case by June 2020.