National
Supreme Court rules for religious agency seeking to reject LGBTQ families
Unanimous decision bottled up to context of city contract
The U.S. Supreme Court ruled on Thursday in favor of a religious-affiliated foster care agency seeking to refuse child placement into LGBTQ homes, issuing a decision with limited reach that determined the City of Philadelphia’s enforcement of a contract with non-discrimination provisions violates freedom of religion under the First Amendment.
In a surprise twist, the ruling was unanimous with nine justices on the court agreeing to the result in favor of Catholic Social Services, with Chief Justice John Roberts writing the opinion. As noted by SCOTUSblog, the court seemed much more divided in oral arguments, although inclined to rule for the foster care agency.
“The refusal of Philadelphia to contract with CSS for the provision of foster care services unless the agency agrees to certify same-sex couples as foster parents cannot survive strict scrutiny and violates the Free Exercise Clause of the First Amendment,” Roberts writes.
Although Catholic Social Services had also contended a freedom of speech right under the First Amendment to reject same-sex couples, Roberts adds the court didn’t reach a conclusion on that part of the argument.
Becket Law, which had argued in case on behalf of Catholic Social Services, crowed in a statement over its win at the Supreme Court.
“It’s a beautiful day when the highest court in the land protects foster moms and the 200-year-old religious ministry that supports them,” said Lori Windham, senior counsel at Becket. “Taking care of children, especially children who have been neglected and abused is a universal value that spans all ideological divides.
A key portion of the Roberts decision that could limit its reach is language specific to Philadelphia’s contract with the city allowing for discretion on enforcement, which he says means the measure isn’t generally applicable measure.
“Section 3.21 of the contract requires an agency to provide services defined in the contract to prospective foster parents without regard to their sexual orientation,” Roberts writes. “But section 3.21 also permits exceptions to this requirement at the ‘sole discretion’ of the Commissioner. This inclusion of a mechanism for entirely discretionary exceptions renders the non-discrimination provision not generally applicable.”
The American Civil Liberties Union, which had argued before the Supreme Court in the case and sided with the City of Philadelphia, claimed a small victory after the decision.
“The decision will not affect any foster care programs that do not have the same system for individualized exemptions that were at issue here,” Leslie Cooper, deputy director of the ACLU LGBTQ & HIV Project, said in a statement. “This is good news for the more than 400,000 children in foster care across the country, who are the ones who get hurt the most if placement decisions are made based on an agency’s religious beliefs rather than the child’s best interest. And this decision does not allow discrimination in other taxpayer-funded government programs such as homeless shelters, disaster relief programs and health care.”
Marianne Duddy-Burke, executive director of the LGBTQ Catholic group DignityUSA, initially issued a statement saying the decision opened the door to discrimination against LGBTQ families, but subsequently updated it with a reaction more attune to the decision’s language.
“While we are disappointed in the specifics of today’s ruling, we are relieved that the court did not allow a broad exemption to nondiscrimination provisions in foster and adoption care,” Duddy-Burke said. “It remains deeply problematic that some religiously affiliated agencies continue to seek the ability to ban same-sex couples from opening their hearts and homes to children in need and undermine our hopes for expanding our families. The biases that lie at the heart of this case need to be eradicated.”
David Flugman, a lawyer at the New York-based Selendy & Gay PLLC whose practice includes LGBTQ rights, said in a statement the technical nature of the Fulton is “sure to invite even more litigation.“
“Today the Supreme Court held, on narrow, technical grounds, that the City of Philadelphia’s attempt to ensure that Catholic Charities abide by the same non-discrimination provisions applicable to all other city contractors could not withstand Catholic Charities’ religious right to refuse to screen loving same-sex couples to act as foster parents,” Flugman writes. “The Court did not take up Catholic Charities’ invitation to scuttle the 30 year-old test for free exercise claims that was announced in Smith v. Employment Division, which held that a neutral law of general applicability could survive even if it burdens religious practice.”
The Supreme Court reversed and remanded decision of the U.S. Third Circuit of Court of Appeals, which had ruled in favor of City of Philadelphia enforcing its contract with Catholic Social Services. Both the appeals courts and the lower trial court had come to the opposite conclusion of the U.S. Supreme Court.
Notably, although the City of Philadelphia in addition to the contract it struck with Catholic Social Services has in a place LGBTQ non-discrimination ordinance, the Supreme Court determines that measure doesn’t apply in the context of foster care services because it’s limited to the services “made available to the public.”
“Certification is not ‘made available to the public’ in the usual sense of the words,” Roberts writes. “Certification as a foster parent is not readily accessible to the public; the process involves a customized and selective assessment that bears little resemblance to staying in a hotel, eating at a restaurant, or riding a bus.”
Fatima Goss Graves, CEO of the National Women’s Law Center, said in a statement the decision from the Supreme Court “is a harmful loss to the children in the foster care system in Philadelphia as well as the countless LGBTQ parents.”
“Weakening the government’s ability to protect their civil rights is hardly in their best interest, and we’re committed to ensuring this loophole is not stretched to further justify hatred or prejudice,” Graves added. “We must protect the right of every person to live without fear of discrimination because of who they are or who they love, and we must hold that value particularly close when it comes to the best interest of LGBTQ youth and the families who love them.”
U.S. Federal Courts
Federal judge blocks Trump passport executive order
State Department can no longer issue travel documents with ‘X’ gender markers
A federal judge on Friday ruled in favor of a group of transgender and nonbinary people who have filed a lawsuit against President Donald Trump’s executive order that bans the State Department from issuing passports with “X” gender markers.
The Associated Press notes U.S. District Judge Julia Kobick in Boston issued a preliminary injunction against the directive. The American Civil Liberties Union, which represents the plaintiffs, in a press release notes Kobick concluded Trump’s executive order “is likely unconstitutional and in violation of the law.”
“The preliminary injunction requires the State Department to allow six transgender and nonbinary people to obtain passports with sex designations consistent with their gender identity while the lawsuit proceeds,” notes the ACLU. “Though today’s court order applies only to six of the plaintiffs in the case, the plaintiffs plan to quickly file a motion asking the court to certify a class of people affected by the State Department policy and to extend the preliminary injunction to that entire class.”
Former Secretary of State Antony Blinken in June 2021 announced the State Department would begin to issue gender-neutral passports and documents for American citizens who were born overseas.
Dana Zzyym, an intersex U.S. Navy veteran who identifies as nonbinary, in 2015 filed a federal lawsuit against the State Department after it denied their application for a passport with an “X” gender marker. Zzyym in October 2021 received the first gender-neutral American passport.
The State Department policy took effect on April 11, 2022. Trump signed his executive order shortly after he took office in January.
Germany, Denmark, Finland, and the Netherlands are among the countries that have issued travel advisories for trans and nonbinary people who plan to visit the U.S.
“This ruling affirms the inherent dignity of our clients, acknowledging the immediate and profound negative impact that the Trump administration’s passport policy would have on their ability to travel for work, school, and family,” said ACLU of Massachusetts Legal Director Jessie Rossman after Kobick issued her ruling.
“By forcing people to carry documents that directly contradict their identities, the Trump administration is attacking the very foundations of our right to privacy and the freedom to be ourselves,” added Rossman. “We will continue to fight to rescind this unlawful policy for everyone so that no one is placed in this untenable and unsafe position.”
State Department
HIV/AIDS activists protest at State Department, demand full PEPFAR funding restoration
Black coffins placed in front of Harry S. Truman Building
Dozens of HIV/AIDS activists on Thursday gathered in front of the State Department and demanded the Trump-Vance administration fully restore President’s Emergency Plan for AIDS Relief funding.
Housing Works CEO Charles King, Health GAP Executive Director Asia Russell, Human Rights Campaign Senior Public Policy Advocate Matthew Rose, and others placed 206 black Styrofoam coffins in front of the State Department before the protest began.
King said more than an estimated 100,000 people with HIV/AIDS will die this year if PEPFAR funding is not fully restored.
“If we continue to not provide the PEPFAR funding to people living in low-income countries who are living with HIV or at risk, we are going to see millions and millions of deaths as well as millions of new infections,” added King.
Then-President George W. Bush in 2003 signed legislation that created PEPFAR.
The Trump-Vance administration in January froze nearly all U.S. foreign aid spending for at least 90 days. Secretary of State Marco Rubio later issued a waiver that allows the President’s Emergency Plan for AIDS relief and other “life-saving humanitarian assistance” programs to continue to operate during the freeze.
The Washington Blade has previously reported PEPFAR-funded programs in Kenya and other African countries have been forced to suspend services and even shut down because of a lack of U.S. funding. Two South African organizations — OUT LGBT Well-being and Access Chapter 2 — that received PEPFAR funding through the U.S. Agency for International Development and the Centers for Disease Control and Prevention in recent weeks closed down HIV-prevention programs and other services to men who have sex with men.
Rubio last month said 83 percent of USAID contracts have been cancelled. He noted the State Department will administer those that remain in place “more effectively.”
“PEPFAR represents the best of us, the dignity of our country, of our people, of our shared humanity,” said Rose.
Russell described Rubio as “ignorant and incompetent” and said “he should be fired.”
“What secretary of state in 90 days could dismantle what the brilliance of AIDS activism created side-by-side with George W. Bush? What kind of fool could do that? I’ll tell you who, the boss who sits in the Harry S. Truman Building, Marco Rubio,” said Russell.
U.S. Military/Pentagon
Pentagon urged to reverse Naval Academy book ban
Hundreds of titles discussing race, gender, and sexuality pulled from library shelves
Lambda Legal and the Legal Defense Fund issued a letter on Tuesday urging U.S. Defense Secretary Pete Hegseth to reverse course on a policy that led to the removal of 381 books from the Nimitz Library of the U.S. Naval Academy in Annapolis, Md.
Pursuant to President Donald Trump’s executive order 14190, “Ending Radical Indoctrination in K-12 Schooling,” the institution screened 900 titles to identify works promoting “diversity, equity, and inclusion,” removing those that concerned or touched upon “topics pertaining to the experiences of people of color, especially Black people, and/or LGBTQ people,” according to a press release from the civil rights organizations.
These included “I Know Why the Caged Bird Sings” by Maya Angelou, “Stone Fruit” by Lee Lai, “The Hate U Give” by Angie Thomas, “Lies My Teacher Told Me: Everything Your American History Textbook Got Wrong” by James W. Loewen, “Gender Queer: A Memoir” by Maia Kobabe, and “Democracy in Black: How Race Still Enslaves the American Soul” by Eddie S. Glaude, Jr.
The groups further noted that “the collection retained other books with messages and themes that privilege certain races and religions over others, including ‘The Clansman: A Historical Romance of the Ku Klux Klan’ by Thomas Dixon, Jr., ‘Mein Kampf’ by Adolf Hitler, and ‘Heart of Darkness’ by Joseph Conrad.
In their letter, Lambda Legal and LDF argued the books must be returned to circulation to preserve the “constitutional rights” of cadets at the institution, warning of the “danger” that comes with “censoring materials based on viewpoints disfavored by the current administration.”
“Such censorship is especially dangerous in an educational setting, where critical inquiry, intellectual diversity, and exposure to a wide array of perspectives are necessary to educate future citizen-leaders,” Lambda Legal Chief Legal Officer Jennifer C. Pizer and LDF Director of Strategic Initiatives Jin Hee Lee said in the press release.
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