Three members of the Supreme Court announced on Thursday that they would literally force orphan children to live in a group home or similar setting, rather than allow those children to be placed in foster care with a same-sex couple. Justice Clarence Thomas, Justice Samuel Alito, and Neil Gorsuch did not explain their reasoning in a brief order handed down by the Court, but the plaintiffs in this case made familiar arguments claiming that their religious liberty and free speech were violated.

The case is Fulton v. Philadelphia. Because only three members of the Court voted to stay a lower court decision rejecting the plaintiffs’ arguments, that lower court decision will remain in effect, and foster children will continue to be placed with same-sex couples.

Fulton involves the city of Philadelphia’s process for placing children in foster homes. The city contracts with 30 private agencies which help screen potential foster families and place children in suitable homes. Under the terms of their contract with the city, the agencies may not discriminate on the basis of “sex, sexual orientation, gender identity, marital status, familiar [sic] status.”


For example, if a same-sex couple offers to take in a foster child, an agency may not refuse to place the child with that couple because of the couple’s sexual orientation. An agency could still refuse to place a child with an LGBTQ family if that family was deemed unsuitable for some other, valid reason.

Until recently, an organization called Catholic Social Services (CSS) was one of the many private agencies Philadelphia relied upon to place children in foster homes. Last March, however, the city learned that CSS “would not certify same-sex couples as prospective foster parents even if the couples were otherwise eligible foster parents under state regulations.” When a city official confronted CSS about this policy, a CSS executive responded “I am following the teachings of the Catholic Church.”

As a matter of law, this is not a difficult case. Among other things, the Supreme Court held in Employment Division v. Smith that “the right of free exercise does not relieve an individual of the obligation to comply with a valid and neutral law of general applicability on the ground that the law proscribes (or prescribes) conduct that his religion prescribes (or proscribes).” Thus, so long as Philadelphia requires both religious and non-religious foster agencies to follow the same non-discrimination policy, it is not violating anyone’s religious liberty.

But there are very fraught moral and empirical questions at the heart of this case. Setting aside the questions of civil rights and “religious liberty” that animate Fulton, this is a case about innocent children. How the courts resolve this case could ultimately determine whether children who otherwise would have been placed in relatively stable foster homes will have to remain in group homes or other, inferior settings.

On the one hand, if Philadelphia relies on anti-LGBTQ agencies to identify foster parents, those agencies will exclude otherwise suitable families from the pool of homes that could take in a foster child. Fewer potential foster parents means more children locked out of foster care.


On the other hand, groups like CSS are willing to do the work to identify some families that are willing to take in orphaned children. It is possible that there is a shortage of agencies willing to do that work, and if that is the case, locking CSS out of the system would also lead to more children being denied access to a foster home.

Yet, as Judge Petrese Tucker explained in her Fulton opinion, the empirical evidence is not on CSS’ side.

Among other things, the head of the city agency that oversees the foster care process testified that preventing CSS from placing new children in foster homes “has not resulted in a rise in children placed in congregate care.” (“Congregate care” refers to settings such as group homes and emergency shelters.)

Moreover, as Judge Tucker explains, the city fairly frequently decides to cut ties with one foster agency or another for a variety of reasons. “As of the evidentiary hearing date,” Tucker writes, “at least three foster agencies had intake closures in place and the foster system nevertheless remained stable.” Thus, the evidence suggests that the city is able to distribute work among the other foster agencies when one of them drops out of the pool, and that it is able to do so without slowing down foster placements.

The city, in other words, had a choice. It could assign children to CSS, and potentially have those children miss the opportunity to be placed in a loving household led by a same-sex couple. Or it could assign those children to a different agency that would place children with such a couple.

Philadelphia chose the later option. Three members of the Supreme Court appear to believe that it must chose the former one. They would have placed their ideological desire to immunize religious conservatives from anti-discrimination laws above the best interests of innocent children.