Supreme Court rules in favor of Catholic agency in foster case

WASHINGTON – In a unanimous decision June 17, the Supreme Court said that a Catholic social service agency should not have been excluded from Philadelphia’s foster care program because it did not accept same-sex couples as foster parents.

Although the court said Philadelphia’s anti-discrimination laws put an unfair burden on Philadelphia’s Catholic Social Services, the justices did not issue a sweeping ruling on religious rights or overturn its previous decision involving religious liberty in Employment Division v. Smith.

Chief Justice John Roberts, who wrote the opinion in Fulton v. Philadelphia, said the service agency “seeks only an accommodation that will allow it to continue serving the children of Philadelphia in a manner consistent with its religious beliefs; it does not seek to impose those beliefs on anyone else.”

He also said the city’s actions of excluding the agency burdened its “religious exercise by putting it to the choice of curtailing its mission or approving relationships inconsistent with its beliefs.”

When it heard oral arguments in this case last November, the Supreme Court hinted its willingness to find a compromise in the case that pits the rights of religious groups against state discrimination laws.

The case centered on Philadelphia’s 2018 exclusion of the foster program of Catholic Social Services of the Philadelphia Archdiocese because of the agency’s policy of not placing children with same-sex couples or unmarried couples because these unions go against church teaching on traditional marriage.

A year later, the U.S. Court of Appeals for the 3rd Circuit sided with the city, calling the agency’s policies discriminatory.

The foster care program was supported in friend-of-the-court briefs by the U.S Conference of Catholic Bishops, the Pennsylvania Catholic Conference and other Catholic Charities agencies.

In a June 18 statement, the chairmen of the USCCB’s pro-life and domestic policy committees and its subcommittee on defense of marriage praised the court’s decision, saying it upheld America’s long tradition of being a “tolerant people who respect each other’s deepest differences.”

They said the court’s unanimous ruling reinvigorated “the First Amendment’s promise that religious believers can bring the full vitality of their faith to their charitable service and to the public square. This is a victory for the common good and for thousands of children who rely on religious foster care and adoption agencies to find a loving home with a mother and father, which is their right.”

Richard Garnett, law school professor at the University of Notre Dame and director of the university’s Program on Church, State and Society, said the Supreme Court’s ruling will have a significant impact.

He pointed out that for three decades, the court’s rule has been that religious believers are not entitled to exemptions from general, neutral laws, even when those rules burden religious beliefs and practices.”

In the foster care case, he said the court “emphasized that regulations which include exemptions and exceptions for some are not ‘neutral’ when they burden religious exercise.”

Garnett said it was “striking, and telling, that the court’s more liberal justices” joined this decision, which he said points out that “respect for religious freedom should not be a partisan or left-right issue.”

“All nine justices agree that, when a rule targets religious practices for disapproval, or singles out religious exercise for burdens, it is highly suspect,” he said. “Although a majority of the justices did not go so far as to overrule the Smith decision, the ruling in Fulton will have a major effect on religious-freedom cases going forward.”

Employment Division v. Smith, a 1990 case which also involved religious beliefs, overshadowed much of the oral arguments in the Fulton case. That case involved two American Indians who were fired and denied unemployment benefits in Oregon for using peyote, a hallucinogenic drug, in a religious ceremony.

The court ruled in favor of Oregon, saying its right to legislate against drug use superseded a religious group’s right to use a drug as part of a spiritual ritual. The ruling has been interpreted as giving state and local governments broad powers over religious practices.

In its petition in the Fulton case, Catholic Social Services urged the Supreme Court to overturn the Smith decision, which had been the basis of the lower courts’ rulings against the agency.

During oral arguments, Justices Samuel Alito and Brett Kavanaugh mentioned more than once that same-sex couples had never been rejected by the Catholic agency because they had not ever approached the agency, and if they had, they would have been referred to another foster agency in the city.

“We need to find a balance that also respects religious beliefs,” Kavanaugh said.

Justice Sonia Sotomayor similarly pointed to working out a path forward, asking one of the attorneys siding with the city: “If one wanted to find a compromise in this case, can you suggest one that wouldn’t do real damage to all the various lines of laws that have been implicated here?”

In a news conference after the November arguments, James Amato, executive vice president for Catholic Social Services, said the agency’s work had been more important than ever, particularly during the pandemic. He said its foster care ministry has “been on the sidelines” and the agency needs to know that it can “serve those in need without government restrictions.”

During a May 27 online panel discussion about this case sponsored by Faith in Public Life, a Washington-based advocacy group, John Gehring, the group’s Catholic program director, said the foster case is “emblematic of broader national debates over LGBTQ rights and religious liberty that are playing out in the court, legislatures and Christian universities across the country.”

He said LGBTQ Catholics and their allies were watching this closely and that “most people of faith support non-discrimination policies.”

Gehring stressed that Catholics and other faith-based groups “provide vital social services but public funding should not be used to discriminate. We can honor the principle of religious liberty and respect the dignity of LGBTQ families without pitting those values against each other.”

Leslie Griffin, a law professor at the University of Nevada, Las Vegas who filed a friend-of-the-court brief siding with Philadelphia in this case, said she thought the justices had been taking a long time to issue their opinion because they were “struggling with just how much religious freedom should we say religions get?”

She said the court’s ruling will impact the legal landscape for LGBTQ rights, noting that if the justices find “there is a First Amendment right to violate anti-discrimination laws, it will significantly restrict the freedom of LGBTQ people in numerous religious institutions — schools, hospitals, nursing homes — and in doing business with the government.”

Garnett pointed out in a June 17 email that if the government is willing to give exemptions to some groups, it also must give consideration to the claims of religious believers as well.

“This ruling will significantly increase legal protections for religious minorities and means that courts will and should look much more closely at rules that impose burdens on sincere religious commitments,” he added.

Philadelphia foster parents welcome U.S. Supreme Court’s unanimous ruling

Gina Christian, Catholic News Service

PHILADELPHIA – Foster parents for Catholic Social Services of the Philadelphia Archdiocese said the Supreme Court’s 9-0 decision June 17 on faith-based child welfare agencies comes as a relief.

The court ruled that the city of Philadelphia may not exclude such agencies including CSS from placing foster children in homes.

The case originated with a March 2018 move by the city of Philadelphia to freeze all new foster care placements with CSS because of the agency’s policy of not placing children with same-sex or unmarried couples. Such unions contravene church teaching on marriage, which holds the sacrament of matrimony is reserved only to one man and one woman.

The Philadelphia Archdiocese, represented by the Becket Fund for Religious Liberty, filed suit shortly thereafter, and the case eventually made its way to the nation’s highest court.

Sharonell Fulton, a longtime foster parent with the Catholic agency and the lead plaintiff, said she was “shocked” the legal wrangling began in the first place.

The city “already knew (CSS) was a religious organization,” Fulton told CatholicPhilly.com, the archdiocesan news website. “For us, it’s always been about the children that suffer.”

A member of St. Barbara Parish in Philadelphia, Fulton — a  former hospice care professional — has opened her home to more than 40 foster children over the past three decades.

A number of those children have arrived on her doorstep deeply wounded, both physically and emotionally. The first two she welcomed, brothers ages 5 and 7, had been scalded by boiling water during a family fight over food while living in an abandoned house.

Fulton — who said she had been “on pins and needles” waiting for the Supreme Court decision — has sought to provide a compassionate, stable environment to counter such trauma.

“Children need to be accepted and loved,” she said. “They have to feel that somebody cares. And you have to care for the children, because if you’re not in it for that, it’s not going to work. You have to have it in your heart.”

The older foster children with whom she remains in contact were “sad about the decision” made by the city to discontinue working with CSS, she said.

Throughout the court proceedings, Fulton herself has been publicly approached by same-sex couples, whom she said “were never cut out of the foster care process.”

“I’ve had gay couples stop me in the supermarket. I didn’t know them, but they knew me, and they would come up to me and talk to me,” she said. “And I told them, ‘Listen, this is not personal. I’m standing with the church, because this is what I believe.’”

During its decades of working directly with the city, CSS as a matter of policy did not perform evaluations of the homes of same-sex couples wishing to care for foster children. Instead, CSS referred the required process to one of seven other agencies contracted by Philadelphia’s Department of Human Services.

The archdiocesan lawsuit noted over the course of the CSS-city partnership, neither CSS nor the Philadelphia Human Relations Commission ever received a complaint that LGBT persons were denied placement of a foster child due to CSS’s actions.

“There are many agencies that would place children with them,” Fulton said. “No one was ever mistreated or turned away; they already knew it was a religious organization.”

CSS — which traces its roots to the creation of Catholic orphanages following Philadelphia’s 1793 yellow fever outbreak — derives its mission from the Catholic faith, said Fulton.

“You have to respect those values,” she said. “This is what we believe in, this is what we do.”

“Faith has always been a strong part of our lives,” said fellow CSS foster parents Cathy and Donald Knapke.

The couple, members of St. Aloysius Parish in Pottstown, connected with CSS in 2013 after seeing an advertisement at their church about the agency’s foster care program.

Cathy said they “had always wanted to foster or adopt.”

“We knew we could offer stability and a loving home,” she said. “We’d heard great things about CSS.”

After an extensive training period, the couple received word in 2015 of a child who had been through four previous placements.

That little girl, now 9, officially became their older daughter Shaniyah in December 2016. The adoption of 4-year-old Jekalyn, who was just 14 months when placed by CSS with the Knapkes, was finalized in May 2019.

Having had their first overnight visit with Jekalyn just days before the city’s fallout with CSS, the Knapkes “weren’t sure what was going to happen,” said Cathy.

“We were concerned our youngest was going to leave us, and we wouldn’t be able to adopt her,” she said. “(After) a lot of back and forth ... it was decided that children already placed in that moment would remain in (those) homes.”

The legal battles have left kids “in the middle,” the Knapkes said.

“I feel as if there are a lot of children in Philadelphia who need and deserve a home,” said Cathy. “And I feel as if they’re the ones losing out in this situation, when there are many (foster parents) in CSS who are (available).”

The agency itself has been “a family” to the couple, said Cathy.

“We’re grateful for the staff from CSS,” she said. “They’re a part of our lives, and a part of our girls’ lives too.”

Fulton said the agency does “magnificent work,” without which “children will suffer.”

Both she and the Knapkes said they look forward to continuing as foster parents.

“I’m ready to open my home,” said Fulton.