The U.S. Supreme Court declined to intervene in a dispute between the city of Philadelphia and Catholic Social Services (CSS) Thursday over the latter’s refusal to place children with gay couples.
The case, which will return to the federal appeals court based in Philadelphia, is another closely watched conflict between local officials enforcing a non-discrimination law, and religious dissenters pleading freedom of conscience.
“We hoped for a different decision today, but we are encouraged that three justices agreed that we had an ‘indisputably clear right to relief’ in order to help foster parents to continue serving children in need,” said Lori Windham, senior counsel at the Becket Fund for Religious Liberty, which represents the Catholic adoption agency. “We look forward to pressing these parents’ case at the 3rd U.S. Circuit Court of Appeals in Philadelphia next month.”
The case was occasioned in March when the city stopped referring children to Catholic Social Services, after Mayor Jim Kenney’s administration learned they would not make placements with gay foster parents. The Catholic adoption agency sued, but a federal judge refused to reinstate the referrals in July. The 3rd Circuit followed suit. (RELATED: A Partisan Gerrymandering Challenge Is Poised To Return To The Supreme Court)
The agency says the city’s actions violate its First Amendment rights to speech and free exercise of religion, while Philadelphia argues its adoption partners must comply with Philadelphia’s anti-discrimination ordinance.
In its petition to the high court, the agency asked the justices to reinstitute referrals while litigation continues in the lower courts, warning that it would have to cease operations unless relief is granted.
“The city of Philadelphia’s vindictive conduct will lead to displaced children, empty homes, and the closure of a 100-year-old religious ministry,” the petition reads. “Emergency relief is necessary to prevent this harm.”
There are 250 children in group homes currently waiting for referrals to foster families in Philadelphia.
The agency notes that Catholic charities in Boston, San Francisco and Washington, D.C., closed under similar circumstances.
In a filing opposing the agency’s request, the city emphasized that Catholic social services voluntarily entered into its contract. It also says that when the agency is performing a public service in connection with a government contract, it is not engaged in private, protected speech. (RELATED: Pence Presses Kavanaugh Confirmation As Democrats Drop Obstruction Gauntlet)
“No one is compelling CSS to apply for these city-funded contracts in the first place, and CSS can always simply choose not to participate,” the city’s petition reads.
As is typical of orders of this nature, the justices gave no reason for their decision. Though the Court denied to issue an injunction, Justices Clarence Thomas, Samuel Alito and Neil Gorsuch said they would have granted the application. Five votes are required to issue the stay the adoption agency sought.
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