Conservative Supreme Court Justices Appear to Support Religious Rights in Phila. Foster Agency Case

WASHINGTON — The conservative justices of the U.S. Supreme Court appeared to support the religious rights of faith-based foster and adoption agencies on Wednesday as the nation’s highest court heard oral argument surrounding a Catholic agency that lost its child placement relationship with the City of Philadelphia because of its protocol not to place children in the households of unmarried couples, which would include homosexuals.

“If we are honest about what is really going on here, it’s not about ensuring that same-sex couples in Philadelphia have the opportunity to be foster parents,” Justice Samuel Alito stated, according to a transcript of the hearing. “It’s the fact the City can’t stand the message that Catholic Social Services and the Archdiocese are sending by continuing to adhere to the old-fashioned view about marriage.”

Brett Kavanaugh also opined that it seemed the City was “looking for a fight” as the Catholic agency had never been approached by a same-sex household looking to foster or adopt children. He said the case involves finding a balance to the “very important rights” of religious Americans and homosexual Americans.

“It seems when those rights come into conflict, all levels of government should be careful and should often, where possible and appropriate, look for ways to accommodate both interests in reasonable ways,” he stated. “It’s very sensitive, controversial. There are very strong feelings on all sides that warrant respect.”

Kavanaugh said he fears the City’s “absolutist and extreme position … would require us to go back on the promise of respect for religious believers.”

As previously reported, the matter began in 2018 when the Philadelphia Department of Human Services (DHS) decided to suspend its partnership with Catholic Social Services (CSS) after learning via an article in the Philadelphia Inquirer that the agency does not place children in same-sex households.

The issue was not about CSS initially, but a news lead surrounding Bethany Christian Services. Two lesbians told the Inquirer that after contacting Bethany, they were provided with referrals and advised that the organization had never placed children in homes without both a mother and father.

In reporting on the occurrence, the Inquirer decided to also reach out to Catholic Social Services to ask about its practices. They were informed that the entity likewise doesn’t place children with two men or two women — but had never been approached by anyone in a same-sex relationship.

Both organizations were consequently placed under investigation and further placements of any kind were halted. Philadelphia City Council also passed a resolution to look into DHS policy on working with agencies that decline to place children with homosexuals.

While Bethany Christian Services decided to comply with Philadelphia’s non-discrimination ordinance in order to retain its contract, which means that it agreed to work with homosexual pairs seeking to foster or adopt children, Catholic Social Services sued the City of Philadelphia over the matter.

In July 2018, U.S. District Judge Petrese Tucker denied Catholic Social Services’ request for an injunction, including among her reasons, “in the context of foster care and adoption, DHS and Philadelphia have a legitimate interest in ensuring that the pool of foster parents and resource caregivers is as diverse and broad as the children in need of foster parents and resource caregivers.”

The Third Circuit Court of Appeals agreed with Tucker, stating that “[t]he City stands on firm ground in requiring its contractors to abide by its non-discrimination policies when administering public services.”

“And while CSS may assert that the City’s actions were not driven by a sincere commitment to equality but rather by antireligious and anti-Catholic bias …, the current record does not show religious persecution or bias,” wrote Judge Thomas Ambro on behalf of the three-judge panel. “Instead, it shows so far the City’s good faith in its effort to enforce its laws against discrimination.”

CSS decided to appeal to the U.S. Supreme Court, which agreed to take up the case. On Wednesday, justices questioned both sides about the issue at stake.

“[D]o you agree that a same-sex couple in Philadelphia can become foster parents by going to one of the 30 agencies? Indeed, do you agree that no same-sex couple has ever gone to CSS and, if they did, that they would be referred to one of those 30 agencies?” asked Justice Kavanaugh.

“Would your answer be the same, that if the government took over all hospitals but contracted it out to private entities, it could insist that the hospitals perform procedures that are objectionable on religious grounds to the contractors, so-called contractors, running these hospitals?” also inquired Justice Alito.

The court’s more liberal justices wondered what might be the consequence if the matter is opened up without limitation.

“What is dangerous is the idea that a contractor with a religious belief could come in and say: Exclude other religions from being families, certifying families. Exclude someone with a disability. How do we avoid that? Or exclude interracial couples,” said Justice Sonia Sotomayor.

Read or listen to oral argument in the case in full here. 

One of the plaintiffs in the case, Toni Simms-Bush, remarked in a press release from the law firm Becket that she is glad that the court was seemingly sympathetic to her concerns.

“I’m grateful the justices took our arguments seriously and seemed to understand that foster parents like me just want to provide loving homes for children,” she said. “It does not help anyone for the City to shut down the best foster care ministry in Philadelphia —particularly when we have loving homes ready for children in need.”

A decision on the case, Fulton v. Philadelphia, is expected in June 2021.

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