A dispute between the City of Philadelphia and a Catholic foster care agency that won’t place children with same-sex couples is headed to the U.S. Supreme Court, in a case that could have national implications for nondiscrimination policies related to religious institutions.
The court said Monday that it would hear arguments in the fall. It’s the first case on the subject since the court legalized gay marriage in 2015.
The key question in Fulton v. City of Philadelphia is whether Philadelphia violated Catholic Social Services’ religious-freedom rights when it canceled a contract with the agency because it refuses to place foster children with same-sex couples. The case is named after Sharonell Fulton, a longtime foster parent with Catholic Social Services, who sued the city over the cancellation of the agency’s contract.
The city twice won in lower courts. Philadelphia has a nondiscrimination ordinance covering city contractors.
“The City of Philadelphia is proud of our longstanding commitment to supporting freedom of religion and preserving equal access to services for all people," City Solicitor Marcel S. Pratt said in a statement Monday. "Unfortunately, CSS refused to consider qualified same-sex couples to become foster parents — even when these couples would be a safe, loving family for the child — and in doing so, CSS defied the city’s nondiscrimination policy.”
Pratt said the case is ultimately about serving children in the city’s care. “And the best way to do that is by upholding our sincere commitment to the dignity of all people, including our LGBTQ community,” he said.
Catholic Social Services won’t certify same-sex married couples because of religious beliefs, and it also doesn’t allow unmarried couples who live together to foster children under its program.
Lori Windham, senior counsel at the Becket law firm representing Catholic Social Services, said the Supreme Court’s decision will address questions and tensions nationwide over faith-based adoption and foster care. She also stressed the merit of having a wider range of service providers.
“Over the last few years, agencies have been closing their doors across the country, and all the while children are pouring into the system," she said. "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.”
Windham added that same-sex couples are able to adopt and foster in Philadelphia, just not through the archdiocese’s agency: “I want to emphasize, same-sex couples are able to foster and adopt in Philadelphia," she said. "That has been true for years. It continues to be true today. Catholic Social Services is just one of 29 agencies, and asks to be able to continue providing excellent services and following its faith.”
This is the first case involving foster care and adoption and LGBTQ rights that will come to the Supreme Court, although several incidents nationwide have prompted similar legal disputes.
In 2015, when the Supreme Court ruled that all states must allow gay marriage, Chief Justice John Roberts predicted that the question of same-sex adoption would follow and likely land before the Supreme Court. “Now that prediction has come true,” Windham said.
The path to the Supreme Court started in March 2018, when a same-sex couple interested in becoming foster parents said they were turned down by Bethany Christian Services because they were lesbian. An Inquirer story about the incident found that CSS had a similar policy of not working with LGBTQ people. Bethany agreed to change its policy to align with the city’s anti-discrimination rules. CSS did not, and the city ended its foster-care contract.
Catholic Social Services sued, contending that the city had violated its religious freedom and endangered children in need of a good home.
U.S. District Judge Petrese B. Tucker in 2018 upheld the city’s decision, ruling the city’s Department of Human Services had a legitimate interest in ensuring “that the pool of foster parents and resource caregivers is as diverse and broad as the children in need of foster parents."
In April 2019, the U.S. Court of Appeals for the Third Circuit affirmed that, ruling that the city did not target the agency 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.
Late Monday, Megan Paszko, who with her wife were the couple who said they were turned away from Bethany in 2018, said, “I simply think you shouldn’t be able to use taxpayers’ dollars to discriminate against LGBTQ parents.
“When it’s an agency working on behalf of a government contract that’s discriminating, it’s not someone’s personal bias I’m up against, it’s the government‘s,” said Paszko, who works in social services and lives in the Brewerytown section of the city. “And I just don’t think you should be able to do that while working off a government contract using my tax funds.”
The couple were frustrated by the experience and did not become foster parents, she said.
While Philadelphia halted new foster and adoption services with Catholic Social Services, it does maintain other contracts with the agency and has not moved children who were already in placements through Catholic Social Services, Department of Human Services spokesperson Heather Keafer said. Currently, 38 children are in foster care through Catholic Social Services.
Mike Moreland, a Villanova University professor of law and religion, said that given the court’s conservative composition and its decision to take on the case, the city was likely to lose. “I think the question is, will the court’s decision be relatively narrow … or will it take the opportunity to dramatically expand the rights of religious free exercise?”
Gay rights and religious freedoms have clashed in similar cases related to child welfare around the country.
In January 2019, the Trump administration granted a waiver to South Carolina, allowing the state to provide federal funding to a foster-care agency that works only with Protestant foster parents. The waiver allows the federally funded Miracle Hill Ministries to continue turning away prospective parents of other religions, as well as LGBTQ parents.
In Michigan, the ACLU and two same-sex couples sued the state, saying its policy of allowing child welfare providers to discriminate against same-sex couples violates the establishment clause. A federal judge in September ruled that the case should move forward. Since 2015, Michigan has had a law that says child placement agencies can refuse services in situations that conflict with their religious beliefs.
Leslie Cooper, deputy director of the ACLU LGBT and HIV Project, said Monday that the Philadelphia case “could have profound consequences for the more than 400,000 children in foster care across the country.”
“We already have a severe shortage of foster families willing and able to open their hearts and homes to these children,” she said. “Allowing foster care agencies to exclude qualified families based on religious requirements that have nothing to do with the ability to care for a child such as their sexual orientation or faith would make it even worse. We can’t afford to have loving families turned away or deterred by the risk of discrimination.”