Philly agrees to pay $2M in settlement over LGBTQ foster care lawsuit

Officials also will renew a Catholic foster care agency’s contract, and not require it to follow a nondiscrimination policy

By: - November 24, 2021 9:47 am

By Victoria A. Brownworth

PHILADELPHIA — The decision was unanimous. On June 17, in a 9-0 ruling, the U.S. Supreme Court found the City of Philadelphia violated the First Amendment rights to religious freedom of Catholic Social Services (CSS) in the case of Fulton v. City of Philadelphia.

The Court determined that Philadelphia’s refusal to contract with CSS for the provision of foster care services unless CSS agreed to certify same-sex couples as foster parents violated the free exercise of religion clause of the First Amendment.

Now the city of Philadelphia has agreed to pay $2 million in legal fees to CSS and to renew the Catholic foster care agency’s contract without requiring their adherence to the city’s nondiscrimination policy.

Philadelphia had fought CSS over its refusal to consider same-sex married couples as potential foster parents since March 2018 when an investigative piece by the Philadelphia Inquirer revealed that CSS had an anti-LGBTQ policy with regard to foster parents. Then-City Human Services Commissioner Cynthia Figueroa, affirmed the details of the story and CSS’s contract was cancelled.

CCS filed suit against the city in the U. S. District Court for the Eastern District of Pennsylvania under the Free Exercise Clause and Establishment Clause of First Amendment to the United States Constitution, the Pennsylvania State Religious Freedom Restoration Acts, Free Speech Clause of the First Amendment and the Religious Freedom Restoration Act of 1993.

The district court refused to grant a preliminary injunction against the contract’s cancellation. CSS appealed to the Third Circuit, which ruled unanimously against CSS in favor of the city.

U.S. Supreme Court rules against Philadelphia in foster parents case

CSS appealed to the U.S. Supreme Court and the case was taken up in February 2020. Due to the pandemic, oral arguments were heard via telephone on November 4, 2020.

As the Philadelphia Gay News reported in June, CSS argued that the recent Supreme Court decision of Masterpiece Cakeshop v. Colorado Civil Rights Commission supported their lawsuit. CSS asserted that they had been “subject to hostility from the city based on anti-religious prejudice.”

The city asserted that the precedent set by Employment Division v. Smith, as well as other social services agencies that were also religion-based yet accepted same-sex foster couples all supported the city’s decision to end the CSS contract.

The Supreme Court decision in June ostensibly returned the case to the appellate courts, as the SCOTUS has done with other LGBTQ cases that hinge on religious freedom issues. The court’s failure to rule decisively on this point has resulted in numerous narrowly decided cases, like Fulton.

‘A sad loss for Philadelphians’: LGBTQ advocates react to Supreme Court ruling in Philly foster case

Some even took the ruling in Fulton as a win for LGBTQ rights because the court punted the case back to the appellate courts in a unanimous ruling. But the city chose not to continue the fight against CSS and accepted a resolution approved by the U.S. District Court on Oct. 1.

The subsequent settlement agreement now is considered a means to avoid broader restrictions based on these religious freedom laws.

“Certainly, this was not the outcome we wanted,” Deputy Mayor Cynthia Figueroa told the Inquirer on Nov. 22. “But it was clear if we took this further down the road, we could actually open it up for radically changing other existing constitutional law.”

Figueroa added, “We could have taken the bait and fought this further and actually put other things in jeopardy, and I actually think we made the right decision in this moment.”

Under the agreement with CSS, the city paid the law firm that represented the agency, Becket Law, $1.95 million in legal fees. An additional $56,000 was paid to CSS for related fees. According to Figueroa, the city was represented in-house and by two law firms who worked pro bono for the City, Hogan Lovells and Kaplan Hecker & Fink LLP.

Becket Law, which states it “is the preeminent law firm protecting religious liberty since 1994,” touts the Fulton case as one of their premiere wins on their website.

The more concerning aspect of the decision for LGBTQ people is that the agreement required the city to exempt CSS from Philadelphia’s nondiscrimination ordinance, which prohibits city contractors from discriminating based on race, gender, or sexual orientation, effectively returning CSS to its previous position with the city, but with religious protections. The 2022 CSS contract for foster care is $350,000.

In a statement, the Archdiocese of Philadelphia, which has overseen CSS for more than a century, said, “We are grateful that our ministries can continue serving those who count on us, especially foster children in need of a loving home.”

CSS also had to stipulate to changes in their policy by accepting the settlement. The agency is required to post a warning on its website that it does not work with same-sex couples, and to provide referrals to agencies that do work with same-sex couples.

During the various court challenges, CSS had insisted that while it does not work with same-sex married couples, it also had never refused to work with any same-sex couples.

Other cases nationwide address the same issues as those in Fulton, suggesting the courts will eventually have to set a legal standard. In Tennessee, Kelly Easter is suing the federal government after a federally funded foster care agency rejected her because she is a lesbian.

Easter filed suit against the Department of Health and Human Services after Bethany Christian Services rejected her application because she is a lesbian.

Bethany Christian Services, a nationwide agency, was an original plaintiff in the Fulton case, but the city worked out a new agreement with them in which they accept same-sex couples which the organization adopted nationally in March 2021. Figueroa said that change was a net positive in the Fulton case.

Easter’s suit against the Department of Health and Human Services which oversees the Administration for Children and Families and its Office of Refugee Resettlement alleges that HHS, “by sanctioning and enabling discrimination and favoring certain religious beliefs,” is violating the First and Fifth Amendments.

In another case related to Fulton, the U.S. the Supreme Court ordered the New York state Supreme Court to reconsider its ruling against the Catholic Diocese of Albany that challenged the state’s mandate that it cover abortions in its employee health insurance plans. The court stipulated to Fulton v. City of Philadelphia in its order.

Our stories may be republished online or in print under Creative Commons license CC BY-NC-ND 4.0. We ask that you edit only for style or to shorten, provide proper attribution and link to our web site. Please see our republishing guidelines for use of photos and graphics.