I hope you watched one or more of those. These women are amazing.
Bottom line: Looks like a win for Catholic foster parents—possibly a broad win by a broad margin. And the Justices clearly understood that protecting religious freedom here is not only required by the Constitution but also best for needy children. Fin/ #FreetoFoster
— Luke Goodrich (@LukeWGoodrich) November 4, 2020
When CSS refused to budge, the city froze its foster referrals and its contract was allowed to expire. An appeals court sided with the city, saying that CSS is owed no exemption, since the nondiscrimination policy is “a neutral, generally applicable law.” The precedent here is the 1990 ruling in Employment Division v. Smith, in which a Native American was denied state benefits after using peyote in a ritual.
CSS argues that the appeals court was wrong, that its beliefs were treated with hostility. It adds that foster care isn’t a “public accommodation” like a restaurant. Agencies weigh prospective parents based on subjective judgments about their family lives. The city may consider race when placing specific children.
Maybe that’s enough to win, but CSS also asks the Court to throw out Smith as “unsupported by the text, history, and tradition of the Free Exercise Clause.” An amicus brief by a Jewish group adds that minority faiths have the most at stake: Imagine a hypothetical law that “required practices incompatible with kosher animal slaughter.” The brief cites the case of a family denied damages after a child was given an autopsy “against the commands of their Hmong faith.”
Essentially, we are being told that the Catholic Church must leave its faith at the door if it wants to serve those in need. But our faith compels us to do this work, and we have a right to conduct ourselves according to the tenets of our faith. My hope is that the Supreme Court will rule in favor of upholding the Catholic Church’s First Amendment rights.
And it is often religious beliefs that motivate foster and adoptive parents to do so. This case provides an opportunity for the Court to articulate whether (and how) the scope of religious freedom protects such religiously motivated public service.
Fulton bears upon whether religious institutions may participate in social services, especially in those contexts where such services have been almost wholly absorbed by the state, whether by licensure, regulation, or funding. Religious institutions pioneered the field of child welfare long before anything like “foster care” became a governmental activity. They have remained essential partners ever since.
But the lesson of Boston, Washington D.C., San Francisco, New York, Illinois, and now Philadelphia is that once the government becomes the gatekeeper to a social service, religious institutions are allowed to participate only with the permission of the state. Fulton gives the Court the opportunity to clarify the limits of when the government may wield its gatekeeper role to target religious beliefs it doesn’t like.
In both cases, Sharonell, a woman of modest means but an enormous heart, wondered how she could meet the very basic needs of children who came to her with nothing. And she worried how she might help children—who were just beginning a strange and unfamiliar journey out of an abusive home and into the foster care system—feel loved and supported.
Fortunately, Sharonell didn’t have to bear this burden on her own. Catholic Social Services staff was there to support Sharonell every step of the way. They were available to help, any time day or night. That heartbreaking Christmas, they even brought wrapped presents to her door. This level of dedication to helping those most in need was exactly what Sharonell needed to be the best foster parent possible for these kids.
Sharonell chose to partner with Catholic Social Services because of their well-earned reputation of success in the community and, more importantly, because they share her faith—the same faith that motivated her to open her home to children that much of society has ignored. The training, support, resources, and professional guidance that Catholic Social Services offers to its foster parents are top notch, but their guiding principles are what motivate them to go the extra mile; to make sure that no matter the day or the hour, children in need have loving homes open to them. The agency’s workers are like family to Sharonell, and together they are able to provide exceptional love and care to the children they serve.
— BECKET (@BECKETlaw) November 4, 2020
At issue is the city’s 2018 decision to close down Catholic Social Services’ foster program. The reasons had nothing to do with quality of care: There has never been a complaint about CSS. Instead, the city objected to the fact that this Catholic organization adhered to Catholic teaching about marriage, which means it cannot endorse either unmarried couples or same-sex couples for foster placement. Instead, it would help those couples find one of Philadelphia’s 29 other foster-placement agencies to work with — including three that are certified as experts in serving LGBTQ families.
But this was not enough.
I'm no lawyer, but it seems insulting to the children this Fulton case is about to keep talking about racial discrimination. Especially when Fulton fostered majority black children. #SCOTUS
— Kathryn Jean Lopez (@kathrynlopez) November 4, 2020
A good sign for religious liberty. As long as there are other ways for gay couples to adopt, leaving religious institutions alone – especially when there’s been no case of actual discrimination – is common sense. https://t.co/MSivpxjmKW
— Andrew Sullivan (@sullydish) November 4, 2020
For more on the case, see the Becket Fund’s Free to Foster website. And thank you, to Becket lawyer Lori Windham for doing an excellent job — and the whole team there.
Also, on Friday, Naomi Schaefer Riley from the American Enterprise Institute will join me in a conversation about foster care and adoption in the first of a series of Friday afternoon conversations during National Foster Care Month. Register here.