Supreme Court Case Could Give Taxpayer-Funded Service Providers a Broad License To Discriminate Against LGBTQ People

A pride flag is waved in front of the U.S. Supreme Court on March 26, 2013, in Washington, D.C.

Kristy and Dana Dumont were ready to adopt. The couple, who had been together for 11 years, were determined to provide a good home for one of the 13,000 children in foster care in the state of Michigan. They weighed their options carefully, purchased a larger home with plenty of space, and moved to a great school district. But when they reached out to one of the state-contracted child-placing agencies, they were told that they would not be considered as adoptive parents because they were both women.

Sadly, the Dumonts’ experience has become increasingly commonplace in the United States, as more and more states pass legislation allowing child-placing agencies to use their religious beliefs as an excuse to discriminate. And now, tax-funded service providers’ capacity to reject individuals otherwise protected by nondiscrimination laws may soon become the national standard.

On November 4, the U.S. Supreme Court will hear oral arguments in Fulton v. City of Philadelphia. In this case, Catholic Social Services (CSS) and four of its foster parents sued the city of Philadelphia for ending its contract with CSS agencies because the organization would not allow same-sex couples to be foster parents, which violates the city’s nondiscrimination requirements. Should the Supreme Court side with Catholic Social Services, it would be a vital blow to LGBTQ individuals seeking government services.

How Fulton could influence the landscape of anti-discrimination law

A ruling in favor of CSS would grant religiously affiliated foster agencies a constitutional right to receive taxpayer funding to provide public child welfare services while ignoring anti-discrimination laws by refusing to place children with qualified foster care parents. Such a ruling would not only affect same-sex couples, but could also be used to discriminate against religious minorities, unmarried couples, and couples where one spouse was previously divorced.

In recent months, legal scholars, LGBTQ advocacy groups, family advocacy groups, faith-based child welfare agencies, civil rights groups, and city and regional entities have all submitted briefs that emphasize the need for faith-based welfare providers to comply with nondiscrimination laws. In particular, these briefs argue that CSS’ religious exemption proposal undermines legal equality for LGBTQ people in a free society; that such a license to discriminate demeans same-sex couples and harms children by denying them the opportunity to be placed with a qualified family; that the government has a compelling interest to eliminate discrimination; and that the First Amendment does not require governments to use contractors that refuse to provide contracted services in a nondiscriminatory way.

There are an estimated 443,000 children in foster care around the United States. Meanwhile, same-sex couples are seven times more likely than different-sex couples to foster or adopt children. Preventing LGBTQ couples from adopting or fostering children merely prevents many children from finding families, forcing them to remain with social services. In addition to the human cost, this also has negative economic ramifications, given that each child in the foster care system costs state and federal governments an average of $38,513 every year.

Yet the consequences of this case could extend far beyond the child welfare system. Although the Fulton case pertains to foster care services and prospective same-sex parents, if the court rules in favor of CSS, it would be providing taxpayer-funded agencies with a license to discriminate against any protected characteristic they object to on religious grounds. In addition to child-placing agencies, the effects of such a ruling could span across many other service delivery areas, including food banks, homeless shelters, hospitals, and disaster relief agencies. If agencies demand public funding while providing government services that violate the terms of their contracts, it would be nearly impossible for state and local governments to standardize the provision of public services; moreover, it would undermine the goal of these services—to reach eligible recipients, not provide private entities with government contracts. The realization of such discriminatory policies is detrimental to public health and safety as well as effective and efficient government service delivery.

LGBTQ Americans already face barriers to accessing alternative services

A ruling in favor of CSS would only exacerbate the significant barriers that LGBTQ individuals face when accessing critical services. Recent data from a nationally representative survey by the Center for American Progress show that many LGBTQ people would be unable to find an alternative adoption agency if turned away:*

  • Two in 5 LGBTQ people say that it would be “very difficult” or “not possible” to find an alternative adoption agency.
  • Nearly 1 in 2 transgender people say that it would be “very difficult” or “not possible” to find an alternative adoption agency.
  • Nearly 1 in 2 LGBTQ people living in nonmetropolitan areas say that it would be “very difficult” or “not possible” to find an alternative adoption agency.

Perhaps most telling is the variation between individuals living in states that prohibit discrimination based on sexual orientation in adoption and those living in states that do not. Forty-six percent of individuals in states with no statute, regulation, and/or agency policy that prohibits sexual orientation-based discrimination in adoption report that it would be “very difficult” or “not possible” to find an alternative adoption location, compared with 37 percent of individuals in states with explicit adoption protections.** If Fulton undermines existing protections, it could become even more difficult for LGBTQ people across the country to adopt.

What is more, a Supreme Court ruling in favor of CSS would have sweeping impacts, undermining nondiscrimination protections in a wide variety of critical services. CAP data shed light on the impact that this case could have on access to other services for LGBTQ people who are turned away:

  • Nearly 1 in 3 LGBTQ people say that it would be “very difficult” or “not possible” to find an alternative daycare.
  • Two in 5 LGBTQ people say that it would be “very difficult” or “not possible” to find an alternative homeless shelter.
  • One in 5 LGBTQ people say that it would be “very difficult” or “not possible” to find an alternative therapist or counselor.

These numbers increase when looking solely at transgender Americans—47 percent of whom say that it would be “very difficult” or “not possible” to find alternative daycare options, 52 percent of whom report that it would be “very difficult” or “not possible” to find an alternative homeless shelter, and 46 percent of whom say that it would be “very difficult” or “not possible” to find another therapist or counselor if turned away. Rates of difficulty are also particularly high in nonmetropolitan areas, where 35 percent of individuals report that it would be “very difficult” or “not possible” to find an alternative daycare, 48 percent report that it would be “very difficult” or “not possible” to find an alternative therapist or counselor, and 55 percent report that it would be “very difficult” or “not possible” to find an alternative homeless shelter.

Conclusion

Freedom of religion is an essential right protected by the First Amendment of the Constitution. Distorting this right into a license to discriminate would set a harmful precedent. A decision in favor of CSS would allow taxpayer-funded service providers to ignore anti-discrimination laws and could gut protections for LGBTQ people and religious minorities, among others. As CAP’s survey data demonstrate, if LGBTQ people are denied access to critical services, they often are unable to access these services from alternative providers. Rather than allowing taxpayer-funded service providers to pick and choose which laws they want to follow, the Supreme Court should uphold the rights of everyone to access the services they need.

Lindsay Mahowald is a research assistant with the LGBTQ Research and Communications Project at the Center for American Progress. Caroline Medina is a policy analyst for the LGBTQ Research and Communications Project at the Center.

*Authors’ note: Data are from a nationally representative survey of 1,528 LGBTQ+ identifying individuals, jointly conducted in June 2020 by the Center for American Progress and NORC at the University of Chicago.

**Authors’ note: The following states and territories are listed as having protections: California, Colorado, Connecticut, Delaware, Hawaii, Illinois, Indiana, Iowa, Kentucky, Maine, Maryland, Massachusetts, Michigan, Minnesota, Missouri, Montana, Nevada, Ohio, New Hampshire, New Jersey, New Mexico, New York, Oregon, Rhode Island, South Dakota, Tennessee, Vermont, Washington, West Virginia, and the District of Columbia.