Trump Admin Argues Philadelphia Showed ‘Unconstitutional Hostility’ Toward Catholic Foster Agency

The Supreme Court in Washington on Feb. 1, 2020. (Daniel Slim/AFP via Getty Images)

The Trump administration argued in a recent brief that Philadelphia had shown unconstitutional hostility toward a faith-based organization when it excluded it from a foster care program because of its religious-based objection to same-sex marriage.

The Justice Department (DOJ) filed the brief (pdf) in the case Fulton v. City of Philadelphia, which the Supreme Court agreed to review earlier this year. The case centers around a Catholic foster care agency’s challenge against the city’s decision to block the agency from taking on new foster care cases unless they endorse same-sex couples as part of the foster parent certification process.

The city said they stopped referring children to the agency and is not renewing its contract with it because the agency, which has served the city for over 100 years, had allegedly contravened the city’s Fair Practices Ordinance. The policy prohibits discrimination on the basis of a variety of factors, including race, ethnicity, sex, sexual orientation, and gender identity.

The case was brought by Catholic Social Services (CSS) and two of its certified foster parents—Sharonell Fulton and Toni Simms-Busch—who argue that the city’s policy is discriminatory and violates the agency’s free exercise rights under the First Amendment. It is also asking the court to “revisit” the precedent in Employment Division v. Smith, a case that found an individual’s religious beliefs cannot excuse him or her from complying with a valid law.

The DOJ argued in support of CSS and the foster parents, saying that Philadelphia’s actions had “impermissibly discriminated against religious exercise” and shown “unconstitutional hostility toward Catholic Social Services’ religious beliefs.”

Philadelphia had argued that its actions were permissible because they were enforcing neutral and generally applicable anti-discrimination policies. The DOJ disagreed, arguing that the city had retained the ability to create individualized exemptions and granted de facto exemptions, which then “triggers strict scrutiny that the City cannot satisfy.” Strict scrutiny requires courts to strike down laws unless the government can show that there is a “compelling state interest” and that the law was “narrowly tailored” to achieve the purpose.

“Separately, the application of the City’s policies in this case was tinged with hostility toward religious exercise, not the ‘neutrality that the Free Exercise Clause requires,’” the department argued.

CSS said in its petition (pdf) to the top court that “as a Catholic agency, CSS cannot provide written endorsements for same-sex couples which contradict its religious teachings on marriage.”

It added that the city was acting against them even though the agency’s “beliefs about marriage haven’t prevented anyone from fostering.” CSS also said that, since its opening in 1917 until the start of the case in 2018, they have not been approached by a single same-sex couple about being foster parents, and therefore, no same-sex couple has been prevented from fostering or adopting a child by CSS.

The Trump administration’s brief comes on the same week 76 members of Congress, dozens of states, and a number of diverse religious groups filed friend-of-the-court briefs to urge the top court to allow CSS to continue operating in Philadelphia.

“It’s easy to support a foster agency that has been uniting vulnerable children with loving families for over 100 years, so it’s no wonder CSS has received such broad and diverse support at the Supreme Court,” Lori Windham, senior counsel at the Becket Fund for Religious Liberty, said in a statement.

“Faith-based agencies are some of the best at combating the foster care crisis across the nation, yet across the country, they face threats from those who disagree with their religious beliefs. I am hopeful that the Court will recognize that faith-based agencies are rightfully part of the solution and shouldn’t be subject to the political appetites of their adversaries.”