Bench Memos

Law & the Courts

Sharonell Fulton, et al. v. City of Philadelphia Is Going to the Supreme Court

The Supreme Court Building in Washington, D.C., March 18, 2020 (Tom Brenner/Reuters)

Does the Constitution safeguard religious organizations with a traditional view of marriage that participate in our nation’s social safety-net programs? Can state, local, and federal officials weaponize seemingly neutral anti-discrimination laws and policies to banish faith-based social-service programs that don’t toe some ideological line from the public square? The Supreme Court will take up the issue next term in a case brought by two Philadelphia foster moms and Catholic Social Services of the Archdiocese of Philadelphia. Sharonell Fulton, et al. v. City of Philadelphia is one of the most important religious freedom cases to come before the Supreme Court in a decade.

In 2018, city officials in Philadelphia insisted that the Catholic private foster care agency provide written endorsements of same-sex married couples as foster parents. This is something the archdiocesan agency could not do since it is inconsistent with Catholic teaching on marriage as between a man and a woman. In what can only be construed as ideological retaliation, the city stopped referring kids needing foster homes to the agency and won’t renew the agency’s contract. The archdiocese went to court, and this past Wednesday, former foster children and foster/adoptive parents filed an amicus brief with the Supreme Court. This brief attests to the dignified placement and support Catholic-run agencies provide to foster children and foster and adoptive parents. They urge the high court to protect the agency from the city’s untenable demands.

There are three important considerations in the Fulton case: clarity, tolerance, and kids.

ClarityBecket Law, the religious freedom lawyers representing the foster moms and their agency, urge the Court to craft a new rule for evaluating these kinds of disputes that better protects religious freedom. Specifically, they ask the court to revisit a case from 1990 — Employment Division v. Smith. Smith held that religious objectors are not constitutionally entitled to exemptions from neutral, generally applicable laws. In practice, however, Smith has proven unworkable. The Fulton case is a perfect example. There is plenty of evidence that the city targeted the Catholic agency and that the city’s anti-discrimination policy was honeycombed with exceptions. The lower court in Fulton, however, ignored this evidence. It held that the Catholic agency would have to show that the city treated it worse than it would have treated another organization that did not work with same-sex couples as foster parents. The Founders believed that First Amendment freedoms like the free exercise right deserve the upmost protection, but Smith has emboldened governments to restrict religious freedom using a pretext of neutrality. Fulton could clarify that the government can’t use seemingly neutral anti-discrimination laws to shut religious believers out of the business of caring for the needy in their midst.

Tolerance. Philadelphia officials acted with unabashed intolerance here. All in the name of tolerance, of course. They disparaged the Catholic agency’s support of traditional marriage. Follow “the teaching of Pope Francis,” the head of Philadelphia’s Department of Human Services lectured the Catholic agency’s head — as if the pope had changed Church teaching defining marriage. “Times have changed,” she insisted. “It is not 100 years ago.” The city council, for its part, passed a resolution denouncing “discrimination that occurs under the guise of religious freedom.” The mayor directed the city’s commission on human relations to investigate the agency, even though no citizen had ever complained. The Catholic agency, in response, proposed referring any same-sex married couple interested in fostering (none had ever approached the agency) to one of the 29 other agencies working with the city. Referrals among agencies happen all the time for many different reasons, the agency noted. But the city’s intolerance leaves no room to accommodate dissenting beliefs.

Kids. A staggering number of kids in America lack safe and loving homes. Neglect or abuse linked to the health of parents and the economic and psychological strains caused by the coronavirus pandemic will only increase the number of children in need of fostering. Skilled and nurturing foster parents can make the difference between a child struggling or flourishing. The Archdiocese of Philadelphia has cared for orphaned, abused, and neglected children for more than two centuries. Over 50 years it has partnered with the city as a foster care agency. The Catholic agency accepts children for foster care placement regardless of race, sex, creed, disability, or sexual orientation. In their amicus brief, the former foster children and foster/adoptive parents who worked with Catholic agencies in Philadelphia and beyond highlight how these agencies succeed in putting the focus on the needs of the child, not just the desires of the prospective parents. Kids in need of foster and adoptive families deserve caring, competent, and experienced agencies, not ideological conformists.

Severing ties with Catholic-run foster care and adoption programs under the guise of enforcing “neutral” anti-discrimination laws is tantamount to hanging a “Catholics Need Not Apply” sign outside every state and local health and human services department. This is odious to the Constitution’s guarantees of free speech and the free exercise of religion. Such practice cannot continue, especially when the futures of at-risk kids are at stake.

The Supreme Court has the chance to set things right again in Philadelphia this coming fall. For the sake of religious freedom and kids in need, pray that the justices do the right thing in Fulton v. City of Philadelphia.

Andrea Picciotti-Bayer is Legal Advisor for The Catholic Association Foundation and co-host of the syndicated radio show Conversations with Consequences.

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