Catholic Foster Care Agency Fights Allegedly Discriminatory Religious Test

August 7, 2019 Updated: August 8, 2019

A Roman Catholic charity and two foster parents are asking the U.S. Supreme Court to take up their case after a federal appeals court ruled that Philadelphia could refuse to work with the charity because it has a religious-based objection to same-sex marriage.

The case dates to March 2018, when Philadelphia officials said the opioid crisis had created an urgent need for 300 new foster care families in the city. Days later, the city blocked Catholic Social Services (CSS) and Bethany Christian Services from taking on new foster care cases, alleging the agencies had run afoul of the city’s Fair Practices Ordinance, which forbids “discrimination” on the basis of sexual orientation or gender identity.

In 2017, CSS placed 226 of the city’s children in foster homes and Bethany Christian Services placed 170, according to the Heritage Foundation. There are about 400,000 children across the United States waiting for foster care.

As a ministry of the Archdiocese of Philadelphia, CSS describes itself as “one of the largest private non-profit charitable providers of social services in Pennsylvania,” with a “200-year history of serving people of all faiths.” CSS “is comprised of 12 separate 501 (c)3 charitable corporations, which are together governed by a Board of Directors, who ensure that all funds are used solely used for programs and services that assist and support those in need.”

In its most recent publicly available IRS filing, for the year ending June 30, 2017, CSS reported having 455 employees and 4,146 volunteers. It also disclosed gross receipts of $24.6 million for that year, and having $29.7 million in assets and almost $6 million in liabilities.

Defenders of religious agencies’ involvement in foster care say the religious faith of the organizations is a positive thing. Although 80 percent of foster parents drop out of the process in the first two years, among “the remaining 20 percent who persevere through what is clearly a difficult, frustrating process, faith-based families are far more likely to stick with that and attain the goal of becoming a foster family or adopting a child in foster care,” said National Council for Adoption President Chuck Johnson.

“Faith does play a significant role in terms of the families who are stepping up to adopt children in foster care,” Johnson added.

Certain religious adopting agencies such as CSS choose to put children only with mother-father couples, in accordance with their Christian beliefs. But left-wing groups such as the American Civil Liberties Union and Lambda Legal have filed lawsuits in various states to prevent religious-based agencies such as CSS from helping children who need foster care placement.

Massachusetts, California, and the District of Columbia have also chosen to kick faith-based agencies out of the foster care system, displacing thousands of children. In Illinois, upwards of 2,000 kids were reportedly displaced when Catholic Charities got out of the foster care business.

Petition to Overturn Precedent

Philadelphia’s decision to close the door on CSS was upheld by the 3rd Circuit Court of Appeals on April 22, when it denied CSS’s request for a preliminary injunction against the city, citing a Supreme Court precedent arising out of an Oregon case known as Employment Division v. Smith.

CSS has since asked the Supreme Court to take up the case, arguing it has become a victim of religious discrimination, contrary to the religious freedom protections of the Free Exercise Clause of the First Amendment to the U.S. Constitution.

In its petition for certiorari, or review by the high court, CSS states that Philadelphia was attempting to force the agency “to act and speak in a manner inconsistent with its sincere religious beliefs about marriage.”

CSS explains that “as a Catholic agency, CSS cannot provide written endorsements for same-sex couples which contradict its religious teachings on marriage.” Philadelphia acted against the agency, even though “CSS’s beliefs about marriage haven’t prevented anyone from fostering.”

CSS asks the Supreme Court to overturn previous precedent and determine “[whether] a government violates the First Amendment by conditioning a religious agency’s ability to participate in the foster care system on taking actions and making statements that directly contradict the agency’s religious beliefs.”

Masterpiece Bake Shop 

After filing the petition, one of CSS’s lawyers, senior counsel Lori Windham of the Becket Fund for Religious Liberty, a nonprofit and public interest law firm, wrote on Twitter, “The next big religious freedom case just landed at SCOTUS.”

In an interview with The Epoch Times, Windham summarized her client’s case.

If the city’s decision to stop allowing foster children to be placed with families by CSS stands, the charity will have to shut down its work in the field, she said.

CSS, whose foster care services operate at a financial loss, used to have seven employees who focused on foster care, but now the figure is down to three, Windham said. There used to be 120 children under its umbrella, but the number has fallen to just 60, because no new cases are being processed, she said.

“Catholic Social Services’ actions are protected by the First Amendment,” Windham said. Yet Philadelphia, as the petition states, is asking the organization “to act and speak in a way that’s contrary to their religious beliefs and that’s not something a city government can do,” she said.

Windham said she is optimistic about her client’s chances because of the well-publicized Masterpiece Cake Shop ruling, which held those city officials can’t denigrate and disparage religious belief. In that decision, the Supreme Court held that under the First Amendment, a baker couldn’t be compelled to bake a cake celebrating a same-sex wedding.

Conservative activist Tina Trent, a Roman Catholic who was a former candidate for District 26 of the Georgia General Assembly, and who previously worked as an advocate for foster children in Florida and Georgia, said that CSS, which has branches across the country, “does a tremendous job of working with these families.”

CSS “is one of the largest, most experienced and most successful providers of placement and foster care support services and if you take them out of the equation, you’re limiting the different kinds of resources available to serve these children, who have a whole lot of different needs.”

“Some need family settings, some need group homes, and CSS is one of the oldest and most experienced agencies meeting the needs of these children with diverse problems,” she said.

“The foster care system is not supposed to be about the foster care parents; it’s supposed to be about the children they are helping, and there are children who are going to go without the help they need, so long as there are activists putting their agendas ahead of the needs of the children.”

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