The Supreme Court said Monday it would decide another clash between religion and gay rights, this time involving Philadelphia’s termination of a contract with Catholic Social Services over the group’s refusal to place foster children with same-sex couples.

The court agreed to hear an appeal arguing that excluding the Catholic agency from the city’s program violated the 1st Amendment and its protection for the “free exercise” of religion.

Philadelphia said it required its contractors to abide by the city’s civil rights provisions, including a ban on discrimination based on sexual orientation. Catholic groups had been involved in placing foster children for more than a century, but church officials refused to make a written commitment to consider same-sex couples. They contended that doing so would violate their sincere religious beliefs about marriage.

The city then ended its contract with the group and said it no longer had the authority to place foster children. A federal judge and the 3rd Circuit Court upheld the city’s decision, saying it was based on a sincere commitment to its policy of nondiscrimination and was not a targeted attack on religion.


The case could lead to a major change in church-state law. The justices said they would consider overruling a 1990 opinion that held that people could not claim a special exemption from the law based on their religious beliefs. Then, the court said general and neutral laws should be upheld, so long as they did not target people because of their religion.

That opinion, in Employment Division of Oregon vs. Smith, was written by the late Justice Antonin Scalia. It once reflected the view of most conservatives that religious minorities, like the Amish or the Seventh Day Adventists, were not entitled to be exempted from ordinary laws. The 1990 ruling upheld the firing of two Native Americans who were accused of using peyote as part of a sacrament.

In the past decade, however, Scalia’s opinion has been challenged by conservative Christians who object to laws that forbid discrimination based on sexual orientation or that require employers or pharmacies to provide contraceptives. In the Philadelphia case, religious rights advocates argued that Catholic Social Services should be accorded an exemption from the city’s nondiscrimination law based on “their sincere religious beliefs.”

But they lost in the 3rd Circuit Court of Appeals, which relied on Scalia’s opinion from 1990. “The city’s nondiscrimination policy is a neutral, generally applicable law, and the religious views of CSS do not entitle it to an exception from that policy. It has failed to make a persuasive showing that the city targeted it for its religious beliefs, or is motivated by ill will against its religion, rather than sincere opposition to discrimination on the basis of sexual orientation,” wrote Judge Thomas L. Ambro.


Lawyers for the Becket Fund for Religious Liberty appealed, and the high court said Monday it had agreed to hear the case of Fulton vs. Philadelphia. The appeal asked the court to “revisit” Scalia’s opinion.

“The next big religious freedom case just landed at #SCOTUS. Philly is trying to shut down a 100-year-old Catholic ministry over the ministry’s religious beliefs about marriage,” Lori Windham, a Becket lawyer, tweeted in response to the court’s announcement.

Her group said many other agencies in Philadelphia worked with same-sex couples. “Indeed, no couple has ever been prevented from fostering or adopting a child in need because of CSS’ religious beliefs,” the Becket Fund said in a statement. “Religious agencies like CSS are particularly successful at placing high-risk children, including those with disabilities, large sibling groups and older children, in loving families.”

The American Civil Liberties Union had joined Philadelphia in defense of its policy of nondiscrimination and said the case was about “whether or not taxpayer-funded foster care agencies have a constitutional right to discriminate.”


“When agencies choose to accept taxpayer dollars to provide this critically important government service to children, the needs of children must come first,” Leslie Cooper, deputy director of the ACLU LGBT & HIV Project, said. “This case could have profound consequences for the more than 400,000 children in foster care across the country. We already have a severe shortage of foster families willing and able to open their hearts and homes to these children.”