Bench Memos

Law & the Courts

The Supreme Court review of Sharonell Fulton, et al. v. City of Philadelphia

(Leah Millis/Reuters)

Will Philadelphia’s Catholic Social Services soon have to close its foster care program – a program or ministry that has operated for a century in a city that desperately needs more foster homes to take in its most vulnerable kids? It’s now up to the U.S. Supreme Court to decide, or not, to remedy the injustice in Philly. Far beyond Philadelphia, children needing stable, loving foster parents to rescue them from the worst domestic situations and the religious institutions and individuals ready to rescue these children have a stake in the Supreme Court’s decision or non-decision.

Philadelphia’s Catholic Social Services and two of its certified foster parents have asked the high court to review the city’s impossible demand that the agency endorse or certify same-sex married couples as foster parents. Catholic Social Services wanted to continue the work it is so good at – finding loving foster homes for vulnerable children – while adhering to long-standing Church teaching on the nature of marriage.

The agency turned to the courts, citing its right to free speech and freedom of religion, but the courts have so far rejected its claims. In April, a three-judge panel of the Third Circuit Court of Appeals ruled that the city was simply enforcing a neutral law prohibiting discrimination based on a person’s sexual orientation. The judges held further that Catholic Social Services “has failed to make a persuasive showing that the City targeted it for its religious beliefs, or is motivated by ill will against its religion, rather than a sincere opposition to discrimination on the basis of sexual orientation.”

Philadelphia’s Catholic Social Services is hoping the Supreme Court will review the Third Circuit ruling and safeguard the right of faith-based agencies to partner with the government without abandoning their religious convictions. It’s an important issue for the Supreme Court to address, because, the Philadelphia story is not unique. Catholic foster care and adoption agencies in Washington, D.C., Boston, the state of Illinois, and Buffalo have closed in the face of similar ideological pressures. Earlier this year, the state of Michigan reached a settlement agreement with the ACLU that requires all private adoption and foster care agencies to work with same-sex couples. State officials agreed to the settlement knowing that at least one Catholic foster care and adoption agency in the state is unable to do so and despite a state law specifically offering accommodations for faith-based agencies. The agency there, along with an adoptive couple and a young woman who was adopted as a child, have filed suit to undo the settlement.

Now, it is important to note that no same-sex couple had ever approached Philly’s Catholic Social Services to become foster parents. It’s also worth mentioning that Catholic Social Services does not oppose certifying and working with individuals with same-sex attraction. What it cannot do endorse or certify same-sex married couples as foster parents. Why? Because this runs counter to Catholic teaching on marriage as being between a man and a woman. Finally, Catholic Social Services’s inability to certify same-sex couples doesn’t mean that those couples, if otherwise qualified, cannot foster in Philly. On the contrary, 29 of the city’s partner-agencies work with same-sex couples, and Catholic Social Services has offered to refer same-sex couples to any of these agencies.

This controversy, then, is not about denying same-sex couples the chance to foster children. It is, however, about another kind of discrimination. The city’s refusal to accommodate Catholic Social Services is religious discrimination. In severing its long ties with Catholic Social Services’s foster care program, the city has hung a “Catholics Need Not Apply” sign outside its Health and Human Services Department.

More than 400,000 American children live in foster care today, rescued from the kind of abuse or neglect most of us can (thankfully) only imagine. Some 6,000 of these kids are in Philadelphia. More are waiting for good homes. Shutting out a trusted partner like Catholic Social Services comes at a time when these children deserve as many agencies working for them as possible. Promoting same-sex marriage and foster care among same-sex married couples should not erase the rights to free speech and the free exercise of religion. Nor should it cause the closure of successful faith-based foster care and adoption agencies. American kids in desperate need deserve better. People of faith in the United States deserve better. Supreme Court review of Sharonell Fulton, et. al v. City of Philadelphia can ensure that Americans don’t have to check their religious beliefs at the door in order to care for the most vulnerable among us.

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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