Appeals Court Permits Philadelphia to Stop Referring Foster Children to Agencies with Anti-LGBT Policies

A foster agency in the Philadelphia area known as Catholic Social Services does not allow same-sex parents to use its services. When the Philadelphia Department of Human Services discovered this policy in 2018, it stopped the practice of referring children to the agency for placement. As a result, Catholic Social Services sued the city of Philadelphia for religious discrimination. It argued that the Human Services policy was motivated by malice toward the religious views of the agency. The city responded that the policy was motivated by a genuine desire to prevent sexual orientation discrimination.

Catholic Social Services also sought a preliminary injunction to require Human Services to resume referring children to the agency. However, the Third Circuit Court of Appeals disagreed with the position of Catholic Social Services and denied the request for the preliminary injunction. It found that the record showed no evidence of religious persecution or bias, so Catholic Social Services did not have a valid First Amendment claim. The Court stated that the city is justified in attempting to prevent sexual orientation discrimination, and its policy is neutral on its face. Religious organizations cannot claim an exemption from this generally applicable rule.

While the decision did not resolve the underlying case, the Court stated that it did not believe that Catholic Social Services was likely to prevail on the merits. This was one of the reasons why it denied the preliminary injunction. (Part of the standard for granting a preliminary injunction requires the plaintiff to show a reasonable likelihood of success on the merits.) The Court also felt that Catholic Social Services would not suffer irreparable harm, as required to grant the injunction, since it had several other referral services and would not be forced to go out of business. Finally, the Court noted that the strong public interest in preventing the discriminatory placement of foster children supported its decision.

Read the full decision here at the Justia site.

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