Supreme Court to Decide If Faith-Based Foster Care Must Work With Gay Couples

U.S. Supreme Court
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February 24, 2020

The Supreme Court on Monday agreed to decide whether the city of Philadelphia may lawfully exclude Catholic Social Services (CSS) from its foster care program because the agency does not place children with same-sex couples due to its religious beliefs.

The case presents sweeping questions of religious liberty and nondiscrimination. Aside from the dispute specific to Philadelphia, the plaintiffs are asking the justices to overturn the 1990 case Employment Division v. Smith, which held that religious believers cannot claim exemptions from laws that apply to everyone in a neutral way. That move would have far-reaching implications.

Smith involved two Native Americans who were denied unemployment benefits after they were fired for ingesting peyote during a tribal religious ceremony.

Though the late Justice Antonin Scalia wrote the Smith decision, legal conservatives are increasingly of the view that it unduly restricts the free exercise of religion. Justices Samuel Alito, Clarence Thomas, Neil Gorsuch, and Brett Kavanaugh signaled they were open to revisiting Smith in a January 2019 opinion.

Monday's case arose in March 2018, when a newspaper reporter from the Philadelphia Inquirer asked the archdiocese whether CSS would place children with gay applicants. The archdiocese's negative response appeared in a newspaper article published shortly thereafter. A city official, Cynthia Figueroa, then convened a meeting with CSS, during which time she allegedly told the agency that "times have changed" and it is "not 100 years ago."

CSS and two foster mothers sued Philadelphia in federal court after city officials informed the agency they would not renew its annual contract unless it abandoned its religious objection and agreed to place children with same-sex couples. A federal trial judge and the Third U.S. Circuit Court of Appeals ruled for the city.

The Third Circuit, relying on Smith, said the city was appropriately acting to enforce its general and neutral nondiscrimination policy in view of an apparent violation.

The three-judge panel unanimously concluded that the agency had not made "a persuasive showing that the City targeted it for its religious beliefs, or is motivated by ill will against its religion, rather than sincere opposition to discrimination on the basis of sexual orientation."

"I'm relieved to hear that the Supreme Court will weigh in on faith-based adoption and foster care," said Lori Windham, senior counsel at the Becket Fund for Religious Liberty, which represents CSS and the foster parents.

"Over the last few years, agencies have been closing their doors across the country, and all the while children are pouring into the system," Windham added. "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."

Faith-based agencies place about 57,000 children with foster families each year, according to Becket.

The Supreme Court will likely hear arguments in the fall, with a decision to follow by June 2021. The case is No. 19-123 Fulton v. City of Philadelphia.