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.