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SCOTUS grants LGBT case for next term

Community/Meta Discrimination

This morning, the Supreme Court granted Fulton v. City of Philadelphia, a challenge to the city of Philadelphia’s decision to suspend its contract with Catholic Social Services because that agency refuses to place foster or adopted children with same-sex couples.

The appeals court held that the city’s nondiscrimination law is neutral and generally applicable, and the city didn’t violate the First Amendment in upholding its law.

Since cases have been scheduled through April for this term already, this case will be argued in the term that starts in October.


  • 1. guitaristbl  |  February 24, 2020 at 10:25 am

    This will be a big blow to such ordinances as I expect a 5-4 defeat invalidating all such ordinances for foster care providers.

  • 2. VIRick  |  February 25, 2020 at 10:46 pm

    No, the local non-discrimination ordinance is not the issue, the contract is. And a contract is a contract, regardless of whether or not an ordinance were ever approved by the city. Besides, the ordinance is not being disputed. Nor, for that matter, is the existence of the contract itself. Instead, CSS claims it wishes to continue discriminating, despite wording in their signed contract to the contrary. If CSS disagreed with that wording, as written, then they never should have signed said contract to provide a certain social service under those terms in the first instance.

    Besides, ultimately, this case will likely be tossed for lack of standing on the part of the lead plaintiffs. See immediately below.

  • 3. VIRick  |  February 24, 2020 at 4:36 pm

    US Supreme Court: "Fulton v. City of Philadelphia"

    On Monday, 24 February 2020, the US Supreme Court announced that it has agreed to hear a case from a Philadelphia-based taxpayer-funded adoption agency seeking a First Amendment right to refuse child placement into LGBTQ homes, despite the fact that the agency consented to a city contract prohibiting anti-LGBTQ discrimination.

    The court listed the case, "Fulton v. Philadelphia," on its order list Monday, which indicated the petition for certiorari filed by Catholic Social Services in July 2019 seeking review was granted. It takes a vote of four justices to issue a writ of certiorari — or agree to take up a case — but the vote for that decision is not made public.

    The case came about after the City of Philadelphia learned in March 2018 that Catholic Social Services, which the city had hired to provide foster care services to children in child welfare, were refusing to license same-sex couples despite a contract prohibiting these agencies from engaging in anti-LGBTQ 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 LGBTQ homes for religious reasons under the guarantee of free exercise of religion under the First Amendment.

    A federal district judge in Pennsylvania and the Third Circuit Court of Appeals denied a preliminary injunction in favor of Catholic Social Services. The Third Circuit Court, which declined to revisit the case before the full court "en banc," based its decision in part on the 1990 ruling in "Employment Division v. Smith."

    A major focal point in the case are petitioners Sharonell Fulton and Toni Simms-Busch. Neither of them are heads of Catholic Social Services, but are foster moms who adopted and fostered children through Catholic adoption agencies in Philadelphia. They, through their legal counsel, the Becket Fund for Religious Liberty, are the ones who initiated the lawsuit, not Catholic Social Services. As a resut, a decision could hinge on a matter of "standing," rather than on any other substantive point. Neither woman is LGBT, so it is difficult to understand how either is "harmed" by the city's suspension of the CSS contract, as there are other agencies serving the general public on a non-discriminatory basis still under contract with the city. Perhaps they are viewing it the other way around,– as non-LGBT foster care parents and former clients of CSS, somehow they feel "harmed" by the CSS contract suspension on the part of the city of Philadelphia. Again, though, it would be difficult to state what that "harm" might be.

    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 LGBTQ homes, as its litigation against the City of Philadelphia moved forward. The Supreme Court rebuffed this request, although Associate Justices Alito, Thomas, and Gorsuch signaled they would have granted the injunctive relief. The ACLU has intervened in the case and is representing the Support Center for Child Advocates and Philadelphia Family Pride.

    Certiorari Granted to case 19-123, "Fulton v. Philadelphia," is shown in the news article:

  • 4. Elihu_Bystander  |  February 25, 2020 at 4:01 am

    Thank you Rick for a very fine explanation of this complex suit. What is interesting here is that at this point it is only about a preliminary injunction granted to the city by the U.S. District court. It is not at all about the merits of the case which haven't even been briefed or heard yet by the district court.

    For those who might have an interest here is the petition for the write of certiorari:

  • 5. VIRick  |  February 25, 2020 at 8:46 pm

    Thank you, Elihu, but I am not at all certain that I fully understand the case because I do not know why the courts, at any level, are still entertaining this suit. It is not a very complex issue, as it is a simple matter of contract law:

    1. Catholic Social Services signed a contract to provide a certain taxpayer-funded service for the city.
    2. Catholic Social Services violated the terms of the contract.
    3. The city of Philadelphia suspended/terminated said contract with Catholic Social Services for their having violated the terms of said contract.
    4. Two outside parties, Sharonell Fulton and Toni Simms-Busch, who were not signatories to the afore-mentioned contract, then sued the city of Philadelphia. However, I do not understand their grounds for their even filing this federal lawsuit, let alone their continuing to be entertained, once having done so. It makes no sense.
    5. As non-signatories to the contract, these two outside parties do not have standing to pursue this matter.
    6. Period. Case closed. The suit is tossed for lack of standing on the part of the lead plaintiffs. Everything else is extraneous. See the Proposition 8 "Hollingsworth" case regarding the matter of standing.

    If Catholic Social Services wanted to create a federal issue (literally) as a result of their breach of a service contract which they freely signed with the city of Philadelphia, then, at the very onset, they should have filed their own lawsuit, rather than piggy-back off an outside, third-party suit which ultimately should be tossed for lack of standing. If the suit had been correctly filed in the first instance, it would be named "Catholic Social Services v. City of Philadelphia," rather than "Fulton v. City of Philadelphia." Fulton and friend are not parties to the contract.

    However, you have actually clarified where this case currently stands, while I have jumped way ahead to its ultimate conclusion:

    ". . . at this point it is only about a preliminary injunction granted to the city by the US District Court. It is not at all about the merits of the case which haven't even been briefed or heard yet by the district court."

    Yes, you are correct. And this makes it even simpler, as the issue is strictly a "Yes" or "No" as to whether the preliminary injunction sought by Catholic Social Services, to allow it to continue to participate as a social service provider to the city of Philadelphia, should be granted or denied while the case proceeds. Up to this moment, a preliminary injunction favoring CSS has been denied.

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