By PETER HANCOCK
Capitol News Illinois
phancock@capitolnewsillinois.com

SPRINGFIELD – A recent U.S. Supreme Court decision could reignite a 10-year-old controversy in Illinois over whether faith-based charities can be prohibited from contracting with the state for foster care and adoption services on the grounds that they refuse to work with unmarried or same-sex couples.

In a 9-0 decision Thursday, the nation’s high court ruled against the city of Philadelphia, which had refused to renew a contract for foster care services with Catholic Social Services, arguing that the church-based agency’s refusal to place children in the homes of unmarried and same-sex couples violated a non-discrimination clause in the agency’s contract with the city.

Illinois went through a similar controversy in 2011, shortly after the state legalized civil unions among same-sex couples, when the Department of Children and Family Services refused to renew a contract with Catholic Charities of Illinois over a similar policy.

At that time, however, a circuit court judge in Sangamon County sided with the state and dismissed a lawsuit brought by Catholic Charities.

“For us here in Illinois, had this decision been on the books when the state of Illinois did what it did back in 2011, the Catholic Charities would have been continuing in foster care,” said Peter Breen, vice president and general counsel for the Chicago-based Thomas More Society, which intervened in the case.

“And we wouldn’t have had to suffer through the last 10 years of DCFS incompetence, which has harmed so many children, because you would have had your best performing foster care providers continuing the work they had been doing for a century or more,” he added.

In last week’s Supreme Court case, Fulton v. Philadelphia, the court faced an almost identical question – whether the non-discrimination clause in the contract violated Catholic Social Services’ First Amendment right to the free exercise of religion.

In this case, the court ruled that it did, but the justices decided that issue on narrow grounds that some legal experts say only applies to the city of Philadelphia.

Normally, the court would uphold the right of a state or local government to enact a requirement that might burden the free exercise of religion as long as the rule is both neutral and generally applicable to all individuals and groups, regardless of religious affiliation. That standard comes from a 1990 Supreme Court case involving the Oregon Division of Employment Security.

But in Philadelphia’s case, the justices said, the rule is not generally applicable because the contract contains a clause allowing for exceptions to be made “at the sole discretion of the Commissioner” of the Philadelphia Department of Human Services.

“No matter the level of deference we extend to the City, the inclusion of a formal system of entirely discretionary exceptions … renders the contractual non-discrimination requirement not generally applicable,” the court wrote.

Ed Yohnka, director of communications and public policy for the ACLU of Illinois, said that distinction makes the Philadelphia case markedly different from the 2011 case in Illinois.

“The way in which it differs is that DCFS required every agency who provided care and adoption and foster care services through contracts with the agency to comply with all of Illinois’ non-discrimination laws,” he said. “They didn’t pick and choose on the basis of what the objection was on the part of a particular service provider.”

Although the Supreme Court’s decision last week was unanimous, four of the justices – Amy Coney Barrett, Brett Kavanaugh, Neil Gorsuch and Clarence Thomas – signed on to concurring opinions saying they would have gone even further by agreeing to review, if not strike down, the standard set in the 1990 Oregon case.

A fifth justice, Stephen Breyer, who is often seen as a swing vote on the court, also signed on to one of the concurring opinions, except for a paragraph saying the Oregon standard likely should be overturned.

“This decision is the latest in a string of decisions that have come out from the Supreme Court in the last few years respecting the rights of people of faith to participate in public life,” Breen said. “And the trend is clearly in favor of construing the Constitution to protect religious individuals and entities from the heavy hand of government.”

But Breen said it is unlikely that Catholic Charities in Illinois – which are operated by the four archdiocese of the Catholic Church in the state – will try to reestablish itself with state contracts for child welfare services anytime soon because, when the Sangamon County court ruled against them in 2011, they essentially dismantled their services while their staff went to other outside agencies.

“Restarting foster care would not be a small task for any entity, starting from scratch,” he said.

Yohnka, at the ACLU of Illinois, meanwhile, said he couldn’t predict whether the Philadelphia case would reopen another chapter of litigation in Illinois. But he said he thinks it would be wrong for the state to revisit the issue.

“I think what’s interesting, or what’s lost in this is that there was just that recent report by the auditor general, that found DCFS and its partner agencies were failing to serve LGBTQ kids across the state, really, to the point of just not having any kind of capacity to really even identify, provide services, provide spaces and homes for them to live in where they could be affirmed,” he said. “And I think the idea of going backward in terms of allowing for gay or lesbian couples to be discriminated against in foster care or adoption really feels like a gigantic mistake in the context of what we already know.”

Capitol News Illinois is a nonprofit, nonpartisan news service covering state government and distributed to more than 400 newspapers statewide. It is funded primarily by the Illinois Press Foundation and the Robert R. McCormick Foundation.