Catholic Foster Care Agency Should Be Able to Refuse to Work With Same-Sex Couples, Supreme Court Hears

November 5, 2020 Updated: November 5, 2020

Lawyers for a Roman Catholic charity and two foster parents urged the Supreme Court to allow the agency to refuse on religious-freedom grounds to place children with same-sex couples.

Although only one hour was allotted for oral argument in Fulton v. City of Philadelphia, Chief Justice John Roberts allowed the Nov. 4 hearing to go on for one hour and 52 minutes, perhaps signaling the importance of the issues involved.

The Trump administration backed the charity and the parents, arguing as a so-called friend of the court.

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.

Certain religious adoption and foster-care agencies, such as Catholic Social Services (CSS), which is associated with the Archdiocese of Philadelphia, place 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.

Philadelphia blocked 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.

CSS sued the city, asking that its contract be renewed. The agency argued that its constitutional right to free exercise of religion and free speech entitled it to turn down same-sex couples because they were same-sex couples, as opposed to any reason pertaining to their ability to care for children.

U.S. District Judge Petrese B. Tucker of Philadelphia, who was appointed by former President Bill Clinton, ruled in favor of the city in July 2018. A three-judge panel of the U.S. Court of Appeals for the 3rd Circuit also found for the city.

Both of the lower courts cited Employment Division v. Smith, a 1990 Supreme Court ruling that allows laws that affect religion, provided that they’re neutral and generally applied. CSS seeks to overturn that precedent, which was written by the late conservative Justice Antonin Scalia.

During oral argument, Neal Katyal, the lawyer acting for Philadelphia, said if the court sides with CSS, the decision would “radiate far beyond foster care.”

Such a ruling would permit private contractors to refuse to provide services to religious organizations from “Buddhist to Baptist” based on the contractors’ own religious convictions, Katyal said.

Attorney Jeffrey Fisher, representing two nonprofits that side with the city, argued that if CSS gets what it wants, police officers could refuse to enforce certain laws if they object on religious grounds.

Justice Stephen Breyer implied to CSS attorney Lori Windham, who is senior counsel at the Becket Fund for Religious Liberty, that CSS was being unreasonable.

Philadelphia had agreed to let the agency note its objections to same-sex couples provided it didn’t decline to work with them, he said.

“What’s the problem? I still don’t quite see it,” Breyer said. “They say they are imposing a requirement that does not interfere … how does it interfere?”

Even if the agency were to “tag a disclaimer” on its forms related to same-sex couples, it would still force CSS to “evaluate, assess, and approve” of relationships that violate its religious beliefs, Windham said.

Windham told Justice Sonia Sotomayor, “What the city’s trying to do here is tell religious groups who have been doing this prior to when the city got involved we’re going to exclude you, you can no longer carry out this work unless you take actions that are contrary to your faith. That is something that the Free Exercise Clause prohibits.”

Sotomayor shot back, “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?”

Justice Brett Kavanaugh said Philadelphia didn’t respect the religious beliefs of CSS.

The city went “looking for a fight” and “created a clash,” he told Katyal. It did so “even though no same-sex couple had gone to CSS, even though 30 agencies are available for same-sex couples, and even though CSS would refer any same-sex couple to one of those other agencies.”

Kavanaugh said he “fully appreciate[s] … the stigmatic harm. … But we need to find a balance that also respects religious beliefs.”

Justice Samuel Alito suggested that Philadelphia was motivated by religious intolerance.

“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,” Alito said. “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.”

Hashim M. Mooppan, from the U.S. Solicitor General’s Office, said, “Philadelphia has not afforded Catholic Social Services the tolerance of religious practice that is required by the Free Exercise Clause and vital to our pluralistic nation.”

Philadelphia’s “draconian response to CSS’s hypothetical position discriminates against religious exercise,” he said.

“At the end of the day, what the city has done is worse than cutting off its nose to spite its face,” Mooppan said. “What it is doing is cutting off homes from the most vulnerable children in the city to spite the Catholic Church.”

City officials have made clear, he said, “that the reason they’re doing that is that they view” CCS’ policy regarding same-sex couples “as some sort of odious anachronism rather than, as this court has recognized, a decent and honorable view that people can recognize and accept in a country that’s committed to religious tolerance.”