What Fulton v. City of Philadelphia means for LGBQ&T families and individuals

by Mary Catherine Roper

The United States Supreme Court decision in Fulton v. City of Philadelphia has raised a lot of questions about what the court’s ruling means for LGBQ&T families and individuals in Philadelphia, and across the country. While the decision is not what the ACLU of Pennsylvania was hoping for, it is a very narrow ruling that does not change the law for families outside of Philadelphia.

The court ruled against the city because of the way the court read the contract that existed between city and Catholic Social Services (CSS) in 2018. That contract is no longer in effect, but the ruling means that if the city allows any exemptions from its nondiscrimination provisions, it will have to allow CSS an exemption. It is not clear how that will play out in the next round of foster care contracts. What we do know is that Philadelphia remains committed to LGBQ&T foster families and the children they can give homes to.

The other thing we know is that this hurts.

This ruling means that, at least for now, CSS can refuse to work with LGBQ&T families who want to open their homes to kids in need. That is an insult to these beautiful, loving families and it is disappointing that any foster care agency would turn away great foster parents instead of putting the kids who need homes first.

So that’s Philadelphia. What does this ruling mean for LGBQ&T families in other places?

Not much.

The decision was limited to the way the court read Philadelphia’s foster care contract. The court did not recognize a license to discriminate based on religious beliefs. All levels of government can continue to enforce laws protecting LGBQ&T people against discrimination.

The court’s decision does not create a general right for taxpayer-funded foster care agencies to discriminate. Nor is it a ruling that means that anyone getting government money is free to discriminate by claiming religious freedom.

That’s good news for the over 400,000 children in foster care across the country because they’re the ones who get hurt the most if placement decisions are made based on an agency’s religious beliefs rather than the children’s best interests.

LGBQ&T people are just as qualified to be foster parents as anyone else. There is no reason these families should be turned away from fostering children.

And, in fact, some agencies that have historically turned away LGBQ&T foster parents have recently acknowledged that it is in the best interest of children to accept all qualified families.

This decision does nothing to benefit the children of Philadelphia and flies in the face of Philadelphia’s longstanding commitment to nondiscrimination, inclusivity, and equality. We are proud to live in a city with those values.

Our hearts are with all the LGBQ&T families and the children whose care and safety should always come first. Together we will work toward a day where there are no loopholes that will allow for discrimination in our communities.

We call on Congress to heed the will of an overwhelming majority of voters in the commonwealth and across the nation and finally pass the Equality Act. Passage of the Equality Act would update our civil rights laws to ensure explicit protections from discrimination based on sexual orientation and gender identity.

This result is disappointing, to be sure. But LGBQ&T foster families can rest assured that despite the pain that many may feel about this decision, the real-world impact on foster families will be minimal.

Mary Catherine Roper is the deputy legal director at the ACLU of Pennsylvania.

We are the ACLU’s Pennsylvania affiliate, defending the Constitution and the Bill of Rights through litigation, advocacy, and community education and outreach.