Under the Trump Administration, the Justice Department claims that religious-affiliated adoption agencies, who receive federal funding, should be able to refuse couples that do not align with the agency’s beliefs. This would reverse the Obama Administration’s action to bar discrimination on the basis of religion, sexual orientation, or gender identity.
According to the Catholic Church, marriage can only be between a male and a female. The religious-affiliated adoption agencies are willing to provide foster certifications to households headed by married couples, or single people but not unmarried people. In the eyes of the Catholic Church, a same-sex couple is not considered married; therefore, the religious-affiliated adoption agencies are not willing to provide foster certifications to an unmarried same-sex couple. Catholic Social Services maintains the opinion that it is their constitutional right to turn away same-sex couples.
In a 35-page brief, Fulton v. City of Philadelphia, the Justice Department attorneys claimed that requiring Catholic Social Services to adopt out to LGBTQ+ families violated the religious Free Exercise clause, which is protected under the First Amendment (Johnson, 2020). Additionally, the Justice Department attorneys stated “the City of Pennsylvania has exhibited unconstitutional hostility towards the Catholic Social Services religious beliefs” (Fulton v. City of Philadelphia). The lower courts have previously ruled in favor of the City of Pennsylvania but the Supreme Court has agreed to hear this case.
Religious groups praise this proposal but critics argue claims for discrimination. Currently, there are more than 400,000 children in foster care. According to the Family Equality Council, an advocacy group for LGBTQ+ families, this proposal can further limit the number of homes available to these children living in foster care and prioritizes the provider’s interest in discrimination over the needs of youth in care. This could eliminate the number of willing, loving, and safe families for children in need of homes and fewer children would be available to LGBTQ+ couples. However, proponents of the bill argue that it is difficult to classify someone’s long-held religious beliefs as discrimination. Additionally, the proposal would allow for the adoption agencies to choose families who align with their religious beliefs.
According to a UCLA Williams Institute School of Law study conducted in 2016, 114,000 same-sex couples were raising children. Same-sex couples were found to be more likely than different-sex couples to raise adopted children, 21.4 percent versus 3 percent.
The proponents of the proposal may have a case when arguing that it violates their First Amendment rights, and specifically the Free Exercise Clause. Although, it is incredibly difficult to use religious beliefs as an exemption from the law. The Supreme Court did rule in favor of a baker who refused to bake a cake for a same-sex couple, Masterpiece Cakeshop v. Colorado Civil Rights Commission. However, the Supreme Court reached a narrow 7-2 decision. The majority, which included: Justice Anthony Kennedy, Chief Justice John Rodgers, and Associate Justices Stephen Breyer, Samuel Alito, Elena Kagan, and Neil Gorsuch, upheld the opinion that “the Colorado Civil Rights Commission had violated the state’s constitutional obligation to treat religious expression neutrally by appealing hostile to religious beliefs.” Justice Ruth Bader Ginsburg and Sonia Sotomayor dissented from the court’s ruling. Ginsburg argued that the “evidence of hostility to religion was not cited by the majority was not of the kind we have previously held to signal a free-exercise violation.”