Trump administration asks Supreme Court to make it legal to ban same-sex couples from adopting

Donald Trump said that he would be "better for the gay community" during the campaign, but his Justice Department is arguing against progress in LGBT rights made during the Obama Administration. Photo: Associated Press

The Trump administration wants the Supreme Court to rule in favor of a foster and adoption agency that bans same-sex couples, saying that denying a contract to the Catholic agency for rejecting LGBTQ people violates its religious freedom.

Trump administration attorneys including U.S. Solicitor General Noel Francisco signed a brief in Fulton v. City of Philadelphia, a lawsuit Catholic Social Services (CSS) filed against Philadelphia when the city told them they couldn’t refuse LGBTQ parents anymore.

Related: Republicans vote to make it legal nationwide to ban gays & lesbians from adopting

CSS is one of the dozens of agencies in Philadelphia that work with potential foster and adoptive parents and place children. The organization claims that its religious beliefs force it to categorically refuse to work with same-sex couples, but it does not refuse single parents or unmarried opposite-sex couples.

Philadelphia found out that the group discriminates against LGBTQ people in 2018 and suspended its contract with them, citing an ordinance that bans discrimination on the basis of sexual orientation. The city said that it would reinstate the contract if the agency stopped discriminating.

That’s when CSS sued, saying that their religious freedom was violated since its religious beliefs include the belief that same-sex couples are bad parents.

A federal judge ruled against CSS, saying that the city’s anti-discrimination law does not “constitute a substantial burden” for the organization – it can work with same-sex couples even if it frowns on homosexuality, just like it works with other potential parents who aren’t Catholic.

The Third U.S. Circuit Court of Appeals agreed, stating that CSS “failed to make a persuasive showing that the city targeted it for its religious beliefs.” The ban on discrimination was applied to all agencies of all religions, the court decided, which made it neutral.

Now the U.S. Supreme Court will hear the case, and the Trump administration wants the court to force cities to grant contracts to agencies that discriminate against LGBTQ people because of religious freedom.

The brief argues that the ban on discrimination against LGBTQ people is itself a form of religious discrimination because discriminating against LGBTQ people is “religious conduct.”

“Governmental action tainted by hostility to religion fails strict scrutiny almost by definition,” the Trump administration argues. “Adoption of a law in reaction to particular religious conduct may suggest that the government is impermissibly targeting religious exercise, rather than simply targeting a given type of conduct without regard to its religious motivation.”

The Trump administration also accuses the city of giving other agencies exemptions to its anti-discrimination act, like allowing agencies to refuse potential parents with physical disabilities. The brief says that that is a “secular” exemption to the anti-discrimination rule, which shows that Philadelphia is violating the First Amendment by not allowing religious exemptions to the rule.

“But by tolerating secular reasons for imposing such costs [that is, allowing agencies to refuse disabled parents], yet refusing to accept religious reasons for imposing the same costs, the City is ‘devalu[ing] religious reasons’ and ‘judging them to be of lesser import than nonreligious reasons,'” the Trump administration brief argues.

The Trump administration brief cites the Supreme Court’s Masterpiece Cakeshop decision repeatedly – sometimes multiple times per page. In that case, a baker in Colorado refused to sell a cake to a same-sex couple that was going to get married, arguing that same-sex marriage was against his religion.

The Supreme Court in that case didn’t say that discrimination against LGBTQ people is protected by the First Amendment, but it found that Colorado officials made comments that it believed were not deferential enough to Christianity. It sent the case back down to the state without ruling against the state’s anti-discrimination law.

The Trump administration is trying to use that decision to force local and state governments to work with adoption and fostering agencies that discriminate against LGBTQ people, effectively showing that legal decisions about homophobic bakers are about much more than cake.

LGBTQ advocates argue that allowing adoption agencies to discriminate against same-sex couples will ultimately harm children in foster care by reducing the families available to take them in.

“While this case involves rejecting LGBTQ families, if the court accepts the claims made in this case, not only will this hurt children in foster care by reducing the number of families to care for them, but anyone who depends on a wide range of government services will be at risk of discrimination based on their sexual orientation, religion or any other characteristic that fails a provider’s religious litmus test,” the ACLU’s Leslie Cooper said in a statement.

The Trump administration has argued against protecting LGBTQ people from discrimination in court before.

Multiple pending Supreme Court cases argue that Title VII of the Civil Rights Act of 1964’s ban on discrimination “because of sex” includes discrimination against LGBTQ people because discriminating against someone for being attracted to the wrong sex or for being assigned the wrong sex at birth is a form of sex discrimination.

Moreover, LGBTQ advocates in those cases argue that “sex stereotype” discrimination is already considered a form of sex discrimination, and LGBTQ people inherently break sex stereotypes.

The Trump administration, though, filed briefs in those cases asking the Supreme Court to rule against LGBTQ protections because, in part, lawmakers in 1964 didn’t intend for the Civil Rights Act to apply to LGBTQ people. Instead, the Trump administration argued, Congress needs to pass its own legislation banning discrimination against LGBTQ people.

Donald Trump, though, has signaled that he would veto the Equality Act, a bill before Congress that would add sexual orientation and gender identity to existing civil rights legislation.

And, as the brief filed in Fulton suggests, even if Congress were to pass anti-discrimination legislation, the Trump administration believes that it should not apply to organizations that claim that their religious beliefs require them to discriminate against LGBTQ people.