Supreme Court Avoids Granting Religious Right to Discriminate Against LGBTQ People

Yesterday’s U.S. Supreme Court decision in support of a Philadelphia Catholic foster agency that refuses to place children in LGBTQ-parented households does not give organizations the right to discriminate based on religious beliefs. But it leaves the door open for inevitable future challenges to equal rights ordinances protecting people on the basis of sexual orientation or gender identification.

As we wrote a year ago, the case, Fulton v. City of Philadelphia, originated in 2018, when the city of Philadelphia ended its contract with Catholic Social Services (CSS) to screen and certify potential foster parents, after learning from a Philadelphia Enquirer report that the agency refused to place foster children with LGBTQ people or same-sex couples due to religious beliefs. Under its contract with the city, CSS was mandated to comply with the city’s human rights ordinance, which prohibits discrimination on the base of sexual orientation.

CSS sued the city and in June 2018 requested a preliminary injunction to prevent the city from ending its contract; the injunction was denied in U.S. District Court. The case made its way through the lower courts, and in August 2018, the U.S. Supreme Court declined to hear the case, with justices Clarence Thomas, Samuel Alito and Neil Gorsuch dissenting. In April 2019, the Third Circuit appeals court denied the injunction.

In July 2019, CSS returned to the U.S. Supreme Court again, and in February 2020, following the retirement of Justice Anthony Kennedy and the appointment of Brett Kavanaugh, a now conservative-majority Court agreed to hear the case—a signal to many court watchers that the plaintiffs’ religious freedom argument might receive a more sympathetic hearing the second time around.

Yesterday’s outcome contained some surprises.

Philadelphia Allows Exceptions to Non-Discrimination Clause

The Court’s unanimous decision upholds CSS’s argument that forcing it to place children with LGBTQ families violates its free exercise of religion; however, the Court based its ruling on the fact the City of Philadelphia has in its statutes provisions to make exceptions to its policies—even though the City says it has never made such an exception—and therefore must make an exception for CSS. The majority opinion, written by Chief Justice John Roberts and joined by justices Breyer, Kagan, Barrett, Kavanaugh, and Sotomayor, concludes:

“The creation of a system of exceptions under the contract undermines the City’s contention that its nondiscrimination policies can brook no departures…. The City offers no compelling reason why it has a particular interest in denying an exception to CSS while making them available to others.”

Thus, similar in many ways to the Supreme Court’s 2018 ruling in Masterpiece Cakeshop v. Colorado Civil Rights Commission, yesterday’s unanimous decision is narrowly focused on this specific situation in the city of Philadelphia, Pennsylvania.

LGBTQ rights activists say yesterday’s ruling was a win.

“Properly understood, today’s decision is a significant victory for LGBTQ people,” said National Center for Lesbian Rights Legal Director Shannon Minter, in a statement released by NCLV. “The Court ruled in favor of Catholic Social Services, but on the narrowest possible ground, based on language in the City of Philadelphia’s contract that authorized individualized exemptions for any provider. The Court did not change the current constitutional framework, which permits governments to enforce antidiscrimination laws that prohibit discrimination against LGBTQ people even when doing so may have a disparate burden on those who hold certain religious beliefs. As a result of today’s decision, those who feared the Court might create a sweeping new religious exemption to such laws can breathe a sigh of relief.”

In the majority decision, Roberts wrote, “The refusal of Philadelphia to contract with CSS for the provision of foster care services unless it agrees to certify same-sex couples as foster parents cannot survive strict scrutiny, and violates the First Amendment.” The question before the court, he continued, was whether the city was within its constitutional rights to do so.

CSS asked the Court to revisit its 1990 decision in Employment Division, Department of Human Resources of Oregon v. Smith, which held that the state could deny unemployment benefits to a person who was fired for using peyote as part of a religious ritual, in violation of state law. In his opinion, Roberts wrote that the Court didn’t need to consider Smith in this case, because of a provision in the city’s contract for foster care services that grants the commissioner of the city’s Department of Human Services “sole discretion” to make exemptions on a case-by-case basis, as reported in the SCOTUSblog.

Unanimous Decision Joins Liberal, Conservative Justices

Another surprise from yesterday’s ruling was the seeming absence of a conservative-liberal divide—on this decision at least. Roberts was joined in his majority decision by liberal justices Steven Breyer, Elena Kagan and Sonia Sotomayor, as well as by conservatives Brett Kavanaugh and Amy Coney Barrett. This may be another confirmation, as we have written before, that Supreme Court justices don’t always behave the way the presidents who nominate them expect them to.

“…history has shown us that Supreme Court justices, who are appointed for life, don’t always vote in accordance with their liberal or conservative backgrounds. For example, now-retired Justice Anthony Kennedy, who was nominated to the Court by President Ronald Reagan, angered conservatives in 1992 when he joined with Justices Sandra Day O’Connor and David Souter to uphold Roe v. Wade in the case Planned Parenthood v. Casey.

"When Obergefell was decided in 2015, Kennedy wrote the majority opinion, joining liberal Justices Ruth Bader Ginsberg, Steven Breyer, Sonia Sotomayor and Elena Kagan. Conservative Chief Justice John Roberts, with Justices Antonin Scalia, now deceased, Thomas and Alito dissenting."

While yesterday’s narrowly focused ruling may not have been the resounding victory conservatives hoped for—enshrining the right to discriminate against LGBTQ people on religious grounds—there is no doubt it provides a sufficient platform for more cases of its kind.

Justices Barrett, Alito and Gorsuch wrote concurring but separate opinions, joined by other conservative justices. Barrett wrote that while CSS had made serious arguments for overruling the Smith decision, “the same standard applies regardless whether Smith stays in place,” and therefore the Court has no reason to “decide in this case whether Smith should be overruled, much less what should replace it.” Kavanaugh joined Barrett’s decision, as did Breyer, aside from its first paragraph.

In a 77-page separate opinion, joined by Roberts and Gorsuch, Alito criticized the narrowness of the Court’s ruling in Fulton, saying it “provides no guidance” for future disputes. He then continued to severely criticize the Court’s Smith decision, seemingly in support of overturning the 1990 decision.

Like yesterday’s decision, the Masterpiece Cakeshop decision also was narrowly focused. Rather than addressing the central question of whether the baker could legally refuse to serve LGBTQ people on religious grounds in violation of anti-discrimination laws, the Court ruled for the plaintiff based on its judgment that the state’s civil rights commission expressed hostility toward religion—in that specific case.

CSS built its case in part on the Masterpiece Cakeshop ruling, arguing that it, too, had been subjected to anti-religious prejudice by the City of Philadelphia. One day in the not-too-distant future, no doubt, we will see another challenge to LGBTQ civil rights protection basing its arguments on yesterday’s Fulton v. City of Philadelphia ruling. In his separate decision in yesterday’s case, Gorsuch acknowledges that the Court’s ruling did nothing to finally settle the question of whether religious organizations have the right to discriminate, writing, “the majority’s course guarantees that this litigation is only getting started.”

In short, yesterday’s decision, while not the blow to LGBTQ protections that it might have been, is not the end of the story. Just as conservative politicians and activists will continue challenging women’s constitutional right to choose with onerous anti-abortion laws, so will we see more religious challenges to laws protecting LGBTQ rights. In the near-term, maybe the best we can hope for is, as in the Masterpiece Cakeshop and Fulton v. Philadelphia cases, that the Court continues to make the narrowest possible rulings.

Nevertheless, I continue to take comfort in Supreme Court history: We can prognosticate and predict all we want based on what we think we know of the justices, their backgrounds and their philosophical underpinnings. But over the decades what we see happening is that the justices to an overwhelming extent vote in harmony with the hearts and minds of the American public. Maybe I’m just over-optimistic because it’s Pride Month and our country is slowly but steadily coming back from a global pandemic and worldwide economic crisis, but I just have to believe that hearts and minds ultimately will come down on the side of fairness and equality for all.

Rich Vaughn

Attorney Rich Vaughn is founder and principal of International Fertility Law Group, one of the world’s largest and best-known law firms focused exclusively on assisted reproductive technology, or ART, including in vitro fertilization (IVF), surrogacy, sperm donation or egg donation. Rich is co-author of the book “Developing A Successful Assisted Reproduction Technology Law Practice,” American Bar Association Publishing, 2017.

Peiya Wang
Paralegal (律师助理)

Peiya Wang joined IFLG as a paralegal in 2015, where she manages surrogacy, egg donation and parental establishment cases and provides translation services for many of IFLG’s international clients. Peiya moved to the United States in 2012 to attend Northeastern University in Boston, Massachusetts, receiving a Master of Science degree in Global Studies and International Affairs in 2014. Peiya moved to Los Angeles in 2015, received her paralegal certification from UCLA Extension, and obtained her second Master of Science degree in Legal Studies from Loyola Law School. Peiya relocated back to her hometown, Beijing, China in 2019 and works from IFLG’s Beijing office. When away from the office, Peiya is a dragon boat paddler and a ballroom dancer, where she favors Rumbas and Cha-chas. She is fluent in Mandarin and English.

Luis Sosa

Luis R. Sosa joined IFLG as a paralegal in 2016, where he enjoys pursuing his passion for family and reproductive law. While working toward his bachelor’s degree at Florida International University which he received in 2013, Luis worked as a paralegal and legal assistant for family law litigation firms in Miami and Washington, D.C. As a paralegal and case manager for IFLG, Luis, who is bilingual in English and Spanish, manages surrogacy, egg donation and other reproductive law cases. Luis has worked for IFLG in both Los Angeles as well as San Francisco, and is currently based in Dallas, Texas. In addition to spending time with husband Randy and dog Marty, Luis enjoys being outdoors and appreciating the arts.

Toni Hughes

After receiving her B.S. in Business Management, Toni joined IFLG to pursue her dream of working in the legal field. As a Paralegal with over 10 years of experience in the assisted reproduction technology field, Toni is our Managing Paralegal, responsible for training and managing our paralegal staff. From drafting legal documents to assisting our clients with post-birth matters, Toni embraces the challenge of learning something new in this field each day. Besides spending time with her son, Jordan, Toni enjoys exploring new things, cooking, spending time with family and friends, and serving as a Youth Advisor for “Next Generation.”


Kim has over 30 years of experience in the legal field and has worked exclusively in surrogacy and assisted reproduction law since 1999. Kim is a senior case manager responsible for managing parental establishment cases and interacting with IFLG’s Of Counsel attorneys across the country. With three children of her own, Kim understands the importance of family and finds working in this area of law a rewarding experience.

Rich Vaughn

Attorney Rich Vaughn combined his personal passion as a father of twin boys born via assisted reproductive technology (ART) with more than 20 years of experience in business and technology law to build International Fertility Law Group. Today IFLG is one of the most successful and best-known law firms in the world focused exclusively on fertility law, helping thousands of intended parents through empathetic listening, compassionate guidance, and unmatched legal expertise. As an advocate for reproductive freedom, Rich also contributes his knowledge and time to improving the understanding and practice of ART law, most recently as a founder of and speaker at the first Cambridge University International Surrogacy Symposium held in June 2019, as immediate past chair of the American Bar Association ART Committee, and as a popular presenter to law schools, faculty and advocacy organizations all over the world.

Elizabeth Tamayo

Elizabeth received her Bachelors of Science degree in Criminal Justice from California State University of Los Angeles. Shortly after graduating, she continued her education at the University of California, Los Angeles where she obtained her Paralegal certificate. Elizabeth is fluent in Spanish and has been in the legal field since 2009. She is excited to be a part of the IFLG Team helping families realize their dreams.

Sunny Chien

Sunny joined IFLG as a paralegal in 2017, where she manages surrogacy, egg donation and parental establishment cases for many of IFLG’s international clients. She holds a Bachelor of Arts degree in Philosophy from California State University of Los Angeles, where she graduated cum laude. Sunny is bilingual in English and Mandarin and has extensive experience as a legal assistant and paralegal at Los Angeles-area law firms. She is excited to be part of the IFLG team. In her spare time, Sunny enjoys spending time with her family and their dog, going to the beach, cooking, and being outdoors.

Los Angeles

5757 Wilshire Blvd., Suite 645

Los Angeles, CA 90036

Phone:  +1 323 331 9343

Email:  info@iflg.net

Website:  www.iflg.net

New York

501 Fifth Avenue, Suite 1900

New York, NY 10017

Phone:  +1 844 400 2016

Email:  info@iflg.net

Website:  www.iflg.net

Molly O'Brien

Fertility law attorney Molly O’Brien began working in the field of assisted reproduction technology (ART) in 2005, at an egg donation agency and a surrogacy agency where she became familiar with all aspects of in-vitro fertilization, egg donation and the financial aspects of surrogacy. Since becoming an attorney in 2011, Molly has drafted and negotiated surrogacy, egg donation, sperm donation embryo donation agreements for hundreds of her clients all over the world.

Phoebe Sadler

Fertility law attorney Phoebe Sadler has a background in family law and has been practicing exclusively in the area of assisted reproduction technology (ART) law since 2018.

Rubina Aslanyan

Rubina has an extensive background in the legal field as a paralegal in Family Law and has worked in surrogacy and assisted reproduction law since 2012. Her area of focus is in managing and assisting clients with surrogacy, egg donation, and parental establishment cases for many of IFLG’s domestic and international clients. During her spare time, Rubina enjoys spending time with her family and dog Bella, traveling and cooking.

Alexander Espinoza
Legal Assistant

Alexander joined IFLG as a legal assistant in 2019, where he manages surrogacy, egg donation and parental establishment cases. Alex is bilingual in English and Spanish and has been in the legal field for 23 years. Alex is excited to join the IFLG team and pursuing his will to help others in the reproductive law process. In his spare time he loves spending time with his family and friends, being outdoors, road trips, loves music and dancing.

Cara Stecker
Senior Paralegal

After receiving her paralegal certificate in 2005, Cara began working in assisted reproductive law. During the fifteen years Cara has worked in this field, she has gained a wide range of experience and knowledge that she uses to help better assist clients and those involved in the assisted reproductive journey. Cara’s primary roles involve managing parental establishment matters and coordination with IFLG’s Of Counsel attorney network, drafting contracts and parental establishment court documents and providing support to other team members. Cara finds great joy in being a small part of a team of caring people who help others achieve their dream of having a family. In her spare time, Cara enjoys spending time with her husband and three children, watching her children play the sports they love, and she enjoys, running, cycling and exploring the outdoors in the sun.

Stephanie Kimble

Stephanie received her BS in History and Political Thought from Concordia University Irvine in 2015 and her Paralegal Certificate from University of San Diego later that same year. She has been working as a Paralegal since 2016 in Family and Reproductive Law. She is excited to be part of International Fertility Law Group working on managing Surrogacy, Egg donation and Parental Establishment Cases.

Trish Pittman
Assistant Financial Coordinator

With more than 20 years of experience in the field of accounting, Trish joined the IFLG team in 2019 as Assistant Financial Coordinator. Her client-facing focus at IFLG is to assist with all client trust accounting. Trish is the mother of two daughters and enjoys spending time teaching and learning new things from them. In her free time, she loves long walks in the park and reading suspense and mystery novels.

Katie Deaquino
Senior Paralegal

Katie is a Senior Paralegal with IFLG and has dedicated over sixteen years to the areas of surrogacy and reproductive law. She received her Paralegal Certificate from Coastline Community College and has worked with some of the top law firms in the assisted reproduction community. Katie is also a commissioned Notary Public. With IFLG, Katie manages Surrogacy, Egg Donation, and Parental Establishment cases and provides support to other IFLG team members. Katie truly enjoys helping others build their families through assisted reproduction and is thankful she has had the rewarding experience of assisting IFLG clients. Katie often spends her free time with her Husband, four young children and her bulldog “Bella”.

Elsa Jimenez
Legal Assistant

Elsa joined IFLG as a Legal Assistant in 2019, bringing more than 35 years of experience working in the legal profession (concentrating in tort and litigation matters). At IFLG she assists surrogates with their surrogacy and parental matters. The oldest of five siblings, born and raised in East Los Angeles to Mexican immigrant parents, Elsa loves “seeing the beauty of families forming” through assisted reproductive technology. She and her husband Carlos have four children and one grandson. Elsa enjoys jazz and ’80s music, being outdoors in nature, collecting teacups and tea pots, and spending time with her close-knit family.