Orrick Team Backs LGBTQ Rights in U.S. Supreme Court Test of Government Nondiscrimination Policies Related to Religious Institutions

August.25.2020

In our latest pro bono effort addressing the intersection of LGBTQ rights and religion-based exemptions, an Orrick team has filed an amicus brief on behalf of prominent constitutional scholars in a closely-watched U.S. Supreme Court case involving a dispute between the city of Philadelphia and a Catholic foster care agency that refuses to place children with same-sex couples.

Led by associate Rachel Shalev, the amicus brief in Fulton v. City of Philadelphia argues that Catholic Social Services (CSS) may not refuse to work with same-sex couples, in violation of the terms of its contract with the city to provide foster-care services in a non-discriminatory manner.

The brief explains that the First Amendment’s Religion Clauses prevent the government (including courts) from exempting religious objectors from public laws when doing so will harm identifiable third parties, a prohibition known as the third-party harm rule. The Orrick brief argues that exempting CSS from the city’s non-discrimination policy violates the third-party harm rule, causing significant harm to foster children, same-sex couples seeking to foster, and LGBTQ people more broadly.

“Religious liberty is a core constitutional commitment. But just as the Constitution protects the rights of individuals to profess and practice their faith, it also constrains how far government may go to accommodate religious objectors,” the brief states. “The Constitution’s commitment to religious liberty protects more than the right of adherents to profess and practice their faith. It also protects the right of non-adherents to be free from the costs and consequences of others’ religious commitments.”

In addition to Rachel, the Orrick team includes partners Danny Rubens and Josh Rosenkranz, Senior Counsel Tom Bondy and associate Anne Savin.