A federal judge has ruled against Catholic Social Services (CSS), which sued the city of Philadelphia over its purported right to refuse service to same-sex couples. The judge found that the agency had no inherent right to a government contract, particularly given it was operating in violation of the contract it had.
The suit arose after Philadelphia announced in May that it was suspending foster care placements at both CSS and another agency, Bethany Christian Services, after the Philadelphia Inquirer reported that both agencies refused to place children with same-sex couples in violation of the city’s Fair Practices Ordinance. Bethany ultimately agreed to comply with the nondiscrimination law, but CSS sued, arguing that it should be allowed to continue providing services while discriminating on the basis of sexual orientation in accordance with its religious beliefs.
In a decision issued Friday, U.S. District Judge Petrese B. Tucker, a Clinton appointee, rejected all of CSS’s arguments. This included claims that Philadelphia had violated CSS’s rights to free speech and religion as well as the Establishment Clause.
CSS had admitted to Philadelphia’s Department of Human Services (DHS) that it discriminated against same-sex couples in two ways. It would not certify same-sex couples as prospective foster parents, even if they were otherwise eligible under state regulations. It also would refuse to conduct a home study for a same-sex couple applying to be adoptive parents. Incidentally, CSS would provide a home study for an individual looking to adopt, but only if that person was committed to living single.
Tucker concluded this clearly violated the city’s Fair Practices Ordinance. CSS had argued that it was not a public accommodation and therefore was not bound by the law, but she pointed out that CSS’s contract with DHS specifically included references to compliance with the Fair Practices Ordinance. The decision spells out how CSS is a public accommodation both with and without the contractual inclusion:
In this case, CSS’s provision of services meets the definition of public accommodations and, therefore, CSS must provide its services in accordance with the Fair Practices Ordinance as incorporated by Article XV, § 15.1 of the Services Contract. CSS is a “licensed” “provider” under the Services Contract. CSS publicly solicits prospective foster parents and advertises to attract new foster parents. CSS provides professional “services” to the public. In return for its services, CSS receives public funds and the source of those funds are to be disclosed to the public when CSS disseminates information relating to its services under the Services Contract.
CSS operates and maintains facilities that are used by staff and members of the public to carry out CSS’s work under the Services Contract. The Court concludes, therefore, that CSS’s services are public accommodations to be provided consistent with CSS’s covenant under Article XV, § 15.1, which requires CSS to serve all Philadelphians who seek out its services.
This contractual inclusion made it fairly simple for Tucker to reject CSS’s other claims, because by discriminating, CSS was not only violating city law, but also the terms of its own contract with the city.
Philadelphia was not targeting CSS for its religious beliefs, because it also ceased placements with another non-Catholic agency, and because it expects all of its agencies to comply with the nondiscrimination law. DHS was also ready and willing to continue working with CSS so long as it didn’t discriminate, just as it has resumed working with Bethany Christian Services.
Furthermore, DHS is contracting with CSS to provide specific child-placement services — not to impose its religious beliefs. “The Services Contract does not require CSS to express its religious approval or disapproval of persons seeking out its services,” Tucker wrote. “In essence, if CSS provides its services consistent with the minimal requirements of the all-comers provisions of the Fair Practices Ordinance, then CSS may continue to provide foster care to children. This does not constitute a substantial burden on CSS’s religious exercise of providing foster care to children.”
The court record also rejects an argument frequently put forth by conservatives arguing that adoption agencies should be allowed to discriminate while continuing to receive governmental funding. “DHS offered evidence showing that the closure of CSS’s intake of new referrals has had little or no effect on the operation of Philadelphia’s foster care system,” she noted. Indeed, it did not lead to a rise in children in the government’s care nor in its ability to continue finding homes for them. Philadelphia contracts with some 30 different agencies, and intake closure at different agencies for different reasons is a fairly common occurrence and does not significantly impact the city’s ability to serve those children who need homes.
In contrast, Tucker noted six objectives the city seeks to meet that demonstrate why CSS must comply with both the Fair Practices Ordinance and its own contract:
- Ensuring that when contractors agree to a government contract, they adhere to the terms of that contract.
- Ensuring that when contractors voluntarily agree to be bound by local laws, those laws are enforced.
- Ensuring that when contractors are employed to provide governmental services, those services are accessible to all Philadelphians qualified to receive them.
- Ensuring that the pool of foster parents and resource caregivers is as diverse and broad as the children in need of foster parents and resource caregivers.
- Ensuring that citizens who pay taxes to fund government contractors are not denied access to those services.
- Avoiding claims that the city is violating the Equal Protection Clause or Established Clause by allowing contractors to violate the Fair Practices Ordinance.
In addition to shutting down all of CSS’s arguments, Tucker also mentioned in a footnote another way the agency may be violating the law that wasn’t specifically relevant to the case but which she found concerning.
During the hearing, CSS Secretary and Executive Vice President James Amato testified that CSS would refuse to certify any prospective foster parent who did not provide a “clergy letter” from a religious minister. The denomination of the minister did not matter, but the letter was still an “absolute condition” for certification. Tucker drew the obvious conclusion from this testimony:
It appears, therefore, that CSS will not certify prospective foster parents who are religious but whose religious exercise does not include a relationship with a minister, prospective foster parents who choose not to associate with any religious tradition, or prospective foster parents who associate with a religious tradition that does not have religious ministers willing or able to provide a clergy letter.
This evidence is disconcerting to the Court because it raises serious constitutional as well as contractual questions.
It seems that by fighting for the right to continue discriminating, CSS may have opened itself to scrutiny of other problematic policies as well.
The Becket Fund for Religious Liberty, the anti-LGBTQ Christian law firm representing CSS, promised it would appeal Friday’s ruling:
Several foster families & a foster agency will appeal a ruling today by the Philadelphia district court that allows a harmful new City policy to target religious foster care agencies & keeps foster children from loving homes. Becket's Lori Windham reacts ⇩ #KidsRightsNotFights pic.twitter.com/14mZeHvFBM
— BECKET (@BecketLaw) July 13, 2018
Philadelphia is not the only place where this fight is playing out. This same week, a federal judge was hearing arguments in the ACLU’s challenge of a Michigan law that guarantees adoption agencies can continue to receive state funding even if they discriminate. Kansas and Oklahoma recently passed similar laws, and Republicans in Congress also passed an amendment to a funding bill this week that would create a similar license to discriminate for child placement agencies across the country.