The American Bar Association filed two amicus briefs in August, including one asking the U.S. Supreme Court to affirm a federal circuit court ruling that upholds the city of Philadelphia’s decision to end a contract with a faith-based foster care agency because it refused to certify same-sex couples as foster parents.
The much-watched case stems from Philadelphia’s March 2018 decision to discontinue referring cases to Catholic Social Services as a city contractor because the agency refused to place children in foster homes of same-sex couples, in violation of the city’s non-discrimination policies. The agency sued, arguing that its right to free exercise of religion and free speech entitled it to reject qualified same-sex couples solely on that basis, rather than for any reason related to their qualifications to care for children.
Subsequently, the U.S. Court of Appeals for the Third Circuit in Philadelphia upheld Philadelphia’s decision. Nationwide, federal appeals courts have split on the legal standard to be used in deciding similar types of religious discrimination cases. The Supreme Court has set oral arguments for the case on Nov. 4.
In its brief, the ABA said the city’s decision to enforce its non-discrimination policy furthers the core goals of its foster care program and does not present a blanket prohibition against religious agencies contracting to perform public services. The brief also warned that allowing Catholic Social Services to prevail in the case could begin a slippery legal slope where a faith-based contractor, citing religious principles, could exempt itself from other non-discrimination policies when contracting to perform public services.
The second ABA amicus brief, filed with the U.S. Court of Appeals for the District of Columbia Circuit, supports a challenge to the U.S. Department of Justice’s determination that the state of Arizona met the criteria to certify its system for providing counsel in death penalty cases. The certification gives the state the authority to accelerate and limit the scope of post-conviction reviews in capital cases. The ABA brief supported a challenge to the certification and cited inadequate post-conviction experience requirements for counsel and insufficient compensation of court-appointed attorneys in capital cases.
- ABA amicus brief in Sharonell Fulton et al v. City of Philadelphia et al and SCOTUSblog posting on the case
- ABA amicus brief in Office of the Federal Public Defender for the District of Arizona, v. William P. Barr
- Website of the ABA Standing Committee of Amicus Curiae Briefs
- ABA Journal, “Foster care agencies that contract with the government shouldn't discriminate, ABA says in amicus brief,” (Aug. 21)