Philadelphia Violated Catholic Foster Agency's Rights, U.S. Supreme Court Rules

The U.S. Supreme Court on Thursday unanimously ruled against the City of Philadelphia in an ongoing legal fight with the Philadelphia Archdiocese's foster care organization over the group's refusal to accept same-sex couples as foster parents.

The court took up Fulton v. City of Philadelphia last year after an appeals court ruling upheld the city's decision to stop placing children with the local Catholic Social Services because of the group's refusal to place foster children with same-sex couples.

The 3rd U.S. Circuit Court of Appeals in Philadelphia ruled the city did not target the agency, Catholic Social Services, because of its religious beliefs, but acted only to enforce its own nondiscrimination policy in the face of what seemed to be a clear violation.

The Supreme Court, however, ruled that "the refusal of Philadelphia to contract with CSS for the provision of foster care services unless it agrees to certify same-sex couples as foster parents cannot survive strict scrutiny, and violates
the First Amendment."

The court did not consider another challenge that questioned whether Philadelphia also violated the Free Speech Clause provided to the Catholic organization under the U.S. Constitution.

The unanimous ruling did not fully appease all of the justices, with Neil Gorsuch showing his disapproval of the decision in a concurring opinion. He cited a precedent, Employment Division v. Smith, which protects governments' ability to regulate certain aspects of contracts with third-party vendors.

"The particular appeal before us arises at the intersection of public accommodations laws and the First Amendment; it involves same-sex couples and the Catholic Church. Perhaps our colleagues believe today’s circuitous path will at least steer the Court around the controversial subject matter and avoid 'picking a side,'" Gorsuch wrote. "But refusing to give CSS the benefit of what we know to be the correct interpretation of the Constitution is picking a side. Smith committed a constitutional error. Only we can fix it. Dodging the question today guarantees it will recur tomorrow. These cases will keep coming until the Court musters the fortitude to supply an answer. Respectfully, it should have done so today."

The case has been sent back to the Third Circuit Court of Appeals.

While Gorsuch and some other justices on the court would have preferred a broader ruling that looked at the Smith precedent, the Philadelphia Archdiocese and supporters of Catholic Social Services said they are very happy with the decision.

"Today’s decision from our nation’s highest court is a profound one. It brings light and relief to children in need of loving homes and foster parents," Philadelphia Archbishop Nelson Perez said. "It is a crystal clear affirmation of First Amendment rights of catholic agencies and other religious services serving the most vulnerable."

Toni Simms-Busch, a Philadelphia woman who adopted two children through Catholic Social Services, defended Catholic Social Services and said the agency "goes above and beyond what other agencies can provide."

"Nothing could have prepared me for the shock when Philadelphia threatened to shut down Catholic Social Services," Simms-Busch said. "I’m grateful we can finally rest knowing that the agency that brought my family together will continue to bring together families."

Philadelphia City Solicitor Diana Cortes described the ruling as "a difficult and disappointing setback for foster care youth and the foster parents who work so hard to support them." She also said it could open the door to contractors setting their own standards for work done for a municipal government that could sidestep discriminatory protections.

"With today’s decision, the Court has usurped the City’s judgment that a non-discrimination policy is in the best interests of the children in its care, with disturbing consequences for other government programs and services," Cortes said in a statement.

Philadelphia's contract with the agency has expired, but the agency is seeking a court order requiring the city to renew the contract.

Catholic Social Services won't certify same-sex married couples because of religious principles, and it also doesn't allow unmarried couples who live together to foster children under its program.

The agency had worked with the city for years, but its policy only came to the city's attention in March 2018.

At the time the original lawsuit was filed in federal court in May 2018, Catholic Social Services fostered 120 children a day through foster parents like Sharonell Fulton, according to the initial complaint.

When attorneys for Fulton, a Philadelphia woman who served as a foster parent for Catholic Social Services for 27 years, and the non-profit asked the Supreme Court to hear their case and reject the lower courts' rulings, one of the questions the attorneys posed was:

"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?"

Lawyers for the American Civil Liberties Union previously argued that the case is not a question of First Amendment rights, but instead a question of whether discrimination by a religious organization is allowed when employed by a government entity.

"... Catholic Social Services, sued the City, claiming that the right to free exercise of religion entitles it to a taxpayer-funded contract to perform a government service even though it is unwilling to comply with the City’s requirement that contract agencies accept all qualified families," the ACLU has said.