Correction [11/1/18, 12:26 p.m. ET]: Previously, this story inaccurately stated the court case centered around adoption rather than foster care. It also inaccurately indicated that Catholic Social Services (CSS) was approached directly for a home study. We have corrected the error.
Next week, an appellate court will hear oral arguments regarding Catholic Social Services (CSS)’s claim that Philadelphia discriminated on the basis of religion when it forced the agency to provide services to same-sex couples.
Foster families brought the case — Sharonell Fulton, et al. v. City of Philadelphia — and faced an uphill battle as courts continually ruled against their plea to maintain those services. The conflict arose after a same-sex couple requested another adoption agency provide a home study that would certify them to foster children, leading to piqued interest in CSS’s policy on same-sex foster care.
Because the city’s policy halted the agency’s foster services, it prevented people like Sharonell Fulton — who has fostered over 40 children — from fostering. Without a government contract, Catholic Social Services can’t legally facilitate foster care.
CSS, like many other religious adoption agencies, refused and faced potential closure. The case, according to Becket Fund attorney Lori Windham, represented a rare instance of a Catholic adoption agency fighting back against anti-discrimination laws that forced their hands on service for same-sex couples.
“This is the first case to really test how the First Amendment applies in this circumstance,” she told IJR during an interview.
As IJR previously noted, Catholic organizations have consistently handled these situations by closing down, as the Catholic Church’s catechism not only condemns “homosexual acts” but identifies marriage as a union between a man and a woman.
“Basing itself on Sacred Scripture, which presents homosexual acts as acts of grave depravity, tradition has always declared that ‘homosexual acts are intrinsically disordered,'” the Catechism reads.
Earlier this year, Catholic Charities of Buffalo cited the Church’s teaching when it announced it would close down after receiving an application from a same-sex couple. Catholic Charities of Boston and the Archdiocese of Washington, D.C., similarly shut down their programs in the face of laws mandating cooperation with same-sex adoption.
Windham, whose organization represented CSS, argued something counter to what activists usually argue in similar cases — that the agency faced a form of discrimination.
Watch Windham speak on the issue below:
“The city has singled out a particular religious group and […] has treated them worse than other organizations,” Windham told IJR. She specifically pointed to the free exercise clause in the First Amendment, which she said required that governments treat religious organizations “even-handedly.”
Windham argued that the city allowed other agencies to refer couples to different agencies for other reasons but didn’t show the same courtesy to CSS.
The American Civil Liberties Union (ACLU), which filed a motion to intervene on behalf of Philadelphia Family Pride and another nonprofit, argued the government would “violate the Constitution” if it turned away “qualified families based on religious objections.”
“When governments contract with private agencies to provide public child welfare services and pay them taxpayer dollars to do it, they may not permit them to turn away qualified families based on religious objections to those families,” ACLU attorney Leslie Cooper said.
“Their religious beliefs cannot trump the best interests of the children in their care,” Cooper said when a federal court rejected CSS’ request for a preliminary injunction that would have allowed Philadelphia to continue referring foster services to its agency.
Reggie Shuford, the executive director of the ACLU in Pennsylvania, declared it a “victory for children.”
“First and foremost, this is a victory for children in Philadelphia who need a loving home and can’t afford to have good families turned away for failing to meet a religious litmus test,” he said. Like Windham, he framed the incident as an instance of discrimination.
The ACLU made similar arguments when it joined the Human Rights Campaign in denouncing a slew of proposed laws that would have effectively allowed agencies like CSS to avoid serving same-sex couples.
Given the administration’s focus on religious liberty, the Justice Department could file a brief supporting CSS’ case. The department, for example, backed a Colorado baker in a lawsuit sparked by his decision not to provide a wedding cake for a same-sex couple.
The outcome could be detrimental for foster children seeking suitable homes. As the Catholic News Agency reported, Philadelphia authorities announced earlier this year that the city had an urgent need for 300 foster families.
While it’s unclear what happened in those cases, both sides of the debate have argued that the other is blocking opportunities for children to find foster families.
Opponents of LGBTQ equality are growing increasingly desperate and cruel. These bills harm kids in need and discriminate against loving families who want to open their hearts and homes. @HRC is on the ground fighting to ensure they never become law. https://t.co/njhfXNq87J
— Chad Griffin (@ChadHGriffin) April 24, 2018
As Becket noted in a press release, CSS hasn’t blocked same-sex couples from fostering elsewhere. Closing the CSS’ agency, however, could take away needed resources for foster children.
Chuck Johnson, who leads the nonpartisan National Council for Adoption, previously said that these types of laws would end up depleting those resources.
“To eliminate faith-based agencies from the field of service over ideology, to take away their licenses, which is happening in states, to prevent them from entering into contracts to provide these services for public entities,” he said, “it is going to end up with seeing fewer resources for children in foster care and children will go unadopted.”