Supreme Court: Catholic Charity May Deny Foster Children to Same-Sex Couples

By Matthew Vadum
Matthew Vadum
Matthew Vadum
Matthew Vadum is an award-winning investigative journalist and a recognized expert in left-wing activism.
June 17, 2021 Updated: June 17, 2021

The Supreme Court unanimously ruled that a Roman Catholic charity in Pennsylvania may refuse on religious-freedom grounds to place children with same-sex couples.

The case is Fulton v. City of Philadelphia, court file 19-123.

Although the June 17 decision was 9–0, the Supreme Court didn’t speak with one voice. Chief Justice John Roberts wrote the opinion of the court, which Justices Stephen Breyer, Sonia Sotomayor, Elena Kagan, Brett Kavanaugh, and Amy Coney Barrett joined. Justices Barrett, Samuel Alito, and Neil Gorsuch each filed a separate opinion concurring in the judgment.

The Trump administration backed the charity, Catholic Social Services (CSS), which is associated with the Archdiocese of Philadelphia, arguing as a so-called friend of the court. CSS was represented by the Becket Fund for Religious Liberty.

Former Vice President Mike Pence hailed the ruling, writing on Twitter that the decision “is a Victory for Catholic Social Services, Foster Care and for the Religious Freedom for Every American!”

Thomas More Society Vice President and senior counsel Thomas Olp also lauded the decision, emphasizing that the unanimous verdict underscores the reverence that the justices have for the liberties established by this nation’s founders.

“This has been a season of intense challenge to one of America’s most precious and dearly held rights, that of religious liberty,” said Olp, whose group filed a friend-of-the-court brief in the case. “This Supreme Court has regularly upheld the importance of this foundational freedom. This decision bodes well for the future of America’s foster children.”

Rep. Pramila Jayapal (D-Wash.) called the ruling “disappointing.”

“This case was never about religious freedom, it was about cruelly discriminating against LGBTQ+ parents,” she said in a statement posted on Twitter. “Instead of ruling for equal justice under law, the highest court in the land just handed out a license to discriminate. As long as there are children who need homes, they should be placed with loving families—full stop. Congress must urgently respond by immediately passing the Equality Act.”

The proposed Equality Act, which was passed by the House in February, would amend the Civil Rights Act of 1964 to forbid discrimination based on sexual orientation and gender identity. Conservative critics such as the Heritage Foundation say it would go much further, curbing “existing civil rights and constitutional freedoms” and forcing “every American to agree with controversial government-imposed ideology on sexuality or be treated as an outlaw.”

The case goes back 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 CSS, place children only with mother-father couples, in accordance with their Christian beliefs.

Philadelphia blocked CSS and Bethany Christian Services from taking on new foster care cases, alleging the organizations had run afoul of the city’s Fair Practices Ordinance, which forbids discrimination on the basis of sexual orientation or gender identity.

CSS, which had been working on foster care cases with Philadelphia for more than 50 years, 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.

The trial court ruled in favor of Philadelphia. So did the U.S. Court of Appeals for the 3rd Circuit.

Writing for the court, Chief Justice John Roberts ruled against Philadelphia, finding the city had violated the other side’s First Amendment rights.

The religious views of Catholic Social Services “inform its work in this system,” Roberts wrote. CSS believes that “marriage is a sacred bond between a man and a woman.”

“Because the agency understands the certification of prospective foster families to be an endorsement of their relationships, it will not certify unmarried couples—regardless of their sexual orientation—or same-sex married couples.

“CSS does not object to certifying gay or lesbian individuals as single foster parents or to placing gay and lesbian children. No same-sex couple has ever sought certification from CSS. If one did, CSS would direct the couple to one of the more than 20 other agencies in the City, all of which currently certify same-sex couples.”

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

But Roberts wrote that there was no reason to disturb Employment Division v. Smith.

“We need not revisit that decision here. This case falls outside Smith because the City has burdened the religious exercise of CSS through policies that do not meet the requirement of being neutral and generally applicable.”

During oral arguments in November 2020, Justice 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.”

“At the end of the day, what the city has done is worse than cutting off its nose to spite its face,” said Hashim M. Mooppan, from the U.S. Solicitor General’s Office.

“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” CSS’s 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.”

Matthew Vadum
Matthew Vadum is an award-winning investigative journalist and a recognized expert in left-wing activism.