It is tempting to believe in the past few weeks that the U.S. Supreme Court, albeit conservative leaning, is growing supportive of LGBTQ rights despite religious counterarguments. This positivity can cast a rose-colored glow on the upcoming SCOTUS decision regarding LGBTQ adoption rights here in Philadelphia. But the recent July 8 SCOTUS ruling on Little Sisters of the Poor v. Pennsylvania reiterated the court's tepid support when deciding cases hinged upon religious freedom. Unfortunately, the upcoming case Fulton v. Philadelphia fits the mold of a religious freedom argument precisely and pro-religious freedom rhetoric abounds:

"Philly is trying to shut down a 100-year-old Catholic ministry over the ministry's religious beliefs about marriage."

This incendiary statement given by Lori Windham, an attorney for Becket Law, is the crux of the firm's mounting case on behalf of the Catholic Social Services (CSS) against the city of Philadelphia. Fulton v. Philadelphia was filed July 22, 2019, in response to the city of Philadelphia barring CSS from providing foster care services after several complaints stating that CSS refused to consider same-sex couples as foster parents due to their LGBTQ+ status.

In response, the city of Philadelphia requested that CSS provide written documentation declaring its compliance with the city's Fair Practices Ordinance that prohibits discrimination based on sexual orientation and gender identity, which is required to contract with the Philadelphia government. CSS refused to do so and, as per the regulation, the city of Philadelphia stopped allocating tax dollars and referrals to CSS. CSS filed a religious discrimination suit arguing that to uphold these provisions violates their religious views on marriage, and that requiring compliance with the Philadelphia's Fair Practices Ordinance is a violation of their constitutional rights.

The city of Philadelphia has stated that services provided with tax dollars for its residents should be available to all of its residents. Multiple rulings favored Philadelphia and, on April 22, 2019, the U.S. Court of Appeals for the Third Circuit denied CSS's request for a preliminary injunction. On Feb. 24, the U.S. Supreme Court granted certiorari and agreed to hear Fulton v. Philadelphia.

The reason the Third Circuit upheld the ruling, and what SCOTUS will be taking under consideration, is a precedent established in April 1990 in Employment Division v. Smith where two Native Americans participated in a religious ceremony involving peyote. The employer, a drug rehabilitation center, discovered that the employees had used peyote and they were summarily dismissed. Because they were dismissed due to misconduct, they were denied unemployment benefits. They challenged the unemployment denial as a violation of their right to religious freedom and SCOTUS held that religious practices do not exempt people from general law-abiding conduct.

Employment Division v. Smith is on point to Fulton v. Philadelphia because it established that religious practices were not granted protection if such practices were already defined as being against the law.

Therefore, the argument would follow that religious organizations are not allowed to discriminate against LGBTQ foster parents in a city where it is against the law to discriminate against LGBTQ individuals.

Becket, the firm representing CSS, has made very weak legal arguments thus far. Their position is that the city of Philadelphia is actually jeopardizing the safety and well-being of children in exchange for "political points" yet they somehow fail to realize that many more children remain in the system because LGBTQ foster parents are denied the right to serve as foster parents. More than 21% of adoptive parents in the US are same-sex couples and 3% are foster parents.

That is seven times the number of opposite-sex couples.

As such, CSS is the one jeopardizing the safety and well-being of foster children by denying LGBTQ people the ability to be foster parents.

Windham's incendiary statement mentioned above only serves to politically inflame and polarize the argument. Philadelphia has no intention of shutting down the entire Catholic institution, it simply cannot allow an organization receiving taxpayer funds to violate the civil rights laws in place; one could say it's not a decision on the city's part, but a required response.

As we wait for SCOTUS to hear oral arguments, the Trump administration has publicly advocated on behalf of CSS. Their argument centers on a claim that banning discrimination against same-sex couples is itself discrimination against religious conduct. This is, of course, hardly the first time this administration has argued along these lines and against LGBTQ rights

The recent SCOTUS decision in Little Sisters of the Poor v. Pennsylvania, addressed the Affordable Care Act's birth control mandate which requires all employers to provide birth control through covered health insurance and, more specifically, the ability of the federal government to enact and enforce religious exemptions to this rule. SCOTUS ruled 7-2 that the federal government had the right to continue issuing religious exemptions and that it did not effectively violate any federal anti-discrimination laws in doing so. This could be tragic foreshadowing of how the court will rule in Fulton. The Affordable Care Act had been contested since its inception, and both this case and Fulton are a near linear result of the most famous contestation of the ACA: Burwell v. Hobby Lobby.

In Hobby Lobby the Supreme Court was asked to strike a balance between a women's right to obtain contraception from an employers' health care plan and the company's religious freedoms. In doing so, with an opinion penned by Justice Samuel Alito, the Supreme Court ruled that "closely held corporations" can decline to provide coverage for birth control in the health care plans they offer to their female employees if the coverage would violate the owners' religious beliefs. When the decision came down, a firestorm erupted between religious groups and gay rights' advocates and within days President Barack Obama received a letter signed by more than 150 religious leaders asking him to "respect this vital element of religious freedom" by exempting religiously affiliated groups from adhering to the LGBTQ antidiscrimination protections contained in his executive order prohibiting federal contractors from discriminating on the basis of sexual orientation or gender identity.

The Little Sisters of the Poor decision clearly demonstrates a conservative-stacked Supreme Court commitment to allow "leaders and business owners to continue their noble work without violating their sincerely held religious beliefs" as Justice Clarence Thomas's opinion states. While it can be tempting to try to predict how SCOTUS will rule on an issue, the last few landmark decisions have shown us how futile the exercise can be.  The precipice of equality we are standing on is feeble and the holding in this case has the power to either bolster or upend the LGBTQ+ community's fight against discrimination in the name of religion. We can only hope that this conservative-leaning SCOTUS decides to balk the trend with a supportive ruling for LGBTQ families that finally restricts a grossly problematic "religious freedom" defense.

Angela D. Giampolo, principal of Giampolo Law Group, maintains offices in Pennsylvania and New Jersey and specializes in LGBT law, business law, real estate law and civil rights. Her website is www.giampololaw.com, She maintains two blogs, www.phillygaylawyer.com and www.lifeinhouse.com. Contact her at [email protected].