Supreme Court Agrees to Review Faith-Based Foster Care Agency’s Fight Against Philadelphia

By Janita Kan
Janita Kan
Janita Kan
Janita Kan is a reporter based in New York covering the Justice Department, courts, and First Amendment.
February 24, 2020Updated: February 24, 2020

The Supreme Court has agreed to take up a case to review whether the City of Philadelphia can exclude a charitable organization from a foster care program because of its religious-based objection to same-sex marriage.

The top court on Feb. 24 granted a petition (pdf) to review the case, cited as Sharonell Fulton v. City of Philadelphia, which would clarify the role of faith-based agencies in the foster care system. The court didn’t give reasons for its decision.

Catholic Social Services (CSS) and two of its certified foster parents—Sharonell Fulton and Toni Simms-Busch—asked the high court last year to review 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 case, which dates to March 2018, came at a time when Philadelphia put out an urgent call for 300 more foster families to deal with an influx of children entering the system fueled partly by the opioid epidemic. Days after the city’s call, officials abruptly blocked CSS and another religious foster care agency from placing children into homes, alleging the agencies had 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 city also informed CSS, which had served the city for over 100 years, that it would not renew contracts with the agency unless it changes its religious practices.

Epoch Times Photo
The Philadelphia City Hall on June 15, 2019. (Petr Svab/The Epoch Times)

CSS and the two parents subsequently sued Philadelphia, seeking an injunction to stop the city’s actions. The district court denied the request for an injunction and its decision was upheld by the 3rd Circuit Court in April 2019. The appeals court found, citing the Supreme Court precedent from Employment Division v. Smith, that the city’s non-discrimination policy is a “neutral, generally applicable law.”

CSS’s lawsuit is claiming that the city’s policy is discriminating against it based on the agency’s religious beliefs and violates the agency’s free exercise rights under the First Amendment. It is 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 agency 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.

“I’m relieved to hear that the Supreme Court will weigh in on faith-based adoption and foster care,” Lori Windham, senior counsel at the religious rights law firm Becket Fund for Religious Liberty, said in a statement. Becket is representing the agency and foster parents in the case.

“Over the last few years, agencies have been closing their doors across the country, and all the while children are pouring into the system. We are confident that the Court will realize that the best solution is the one that has worked in Philadelphia for a century—all hands on deck for foster kids.”

The City of Philadelphia didn’t immediately respond to a request by The Epoch Times for comment.

CSS describes itself as “one of the largest private non-profit charitable providers of social services” in the state. Before Philadelphia took action against CSS in 2017, the group had between 100 to 150 children in its foster care system at any given time, but the number of children in its system has slowly declined since March 2018, a Becket spokesperson told The Epoch Times.

There were an estimated 687,000 children who spent time in foster homes across the United States in the 2018 fiscal year, according to data from the Department of Health and Human Services. Faith-based agencies place over 57,000 children into foster homes nationwide each year, according to Becket.