NEW YORK – Religious freedom advocates are heralding a unanimous Supreme Court decision that upholds the ability of a faith-based foster care agency to operate according to its faith as a statement from the nation’s highest court of its commitment to religious liberty.
The much-anticipated Fulton v. The City of Philadelphia decision was announced on June 17. It mandates that the city of Philadelphia cannot refuse to work with Catholic Social Services of the Archdiocese of Philadelphia because it will not certify same-sex couples as foster parents.
“This is a strong endorsement of religious freedom from a unanimous Supreme Court,” said Lori Windham, senior counsel at Becket Law, who represented the plaintiffs in the case. “The justices recognize that religious social services of many different faiths can come together to serve their communities and that governments should not restrict them because of their religious beliefs.”
Fulton v. Philadelphia dates back to 2018 when a newspaper story recounted the Archdiocese of Philadelphia’s position that Catholic Social Services would not certify same-sex couples as foster parents. After subsequent calls for an investigation, the city told Catholic Social Services that unless it agreed to certify same-sex couples it would no longer refer children to or renew its contract with the agency.
Catholic Social Services and three affiliated foster parents sued the city on the basis that the decision violated the Free Exercise and Free Speech Clauses of the First Amendment.
In the decision written for the court, Chief Justice John Roberts noted that Catholic Social Services does not object to certifying gay or lesbian individuals as single foster parents or to placing gay and lesbian children. No same-sex couple has ever sought certification from Catholic Social Services, he added, and if one did they would direct the couple to another agency in the city.
After the decision was made, Toni Simms-Busch — one of the foster parents that filed the suit along with Sharonell Fulton and Cecilia Paul — expressed her gratitude for the decision alongside Windham and Archbishop Nelson Perez of Philadelphia.
“It has been a long journey for me and all of the families supporting Catholic Social Services through this legal battle, but I’m grateful that we can finally rest knowing that the agency that brought my family together can continue to do the same for other families,” said Busch, the mother of two adopted boys.
“Each year, there are families able to care for children that need help,” she added. “They can succeed with the support of an agency that shares and affirms their faith. Keeping Catholic Social Services open ensures that families can be a part of the solution.”
Philadelphia Archbishop Nelson J. Perez said the decision “brings light and relief for children in need of loving homes and for the heroic foster parents who open their hearts and doors to care for them.”
Justice Samuel Alito, however, warned “this decision might as well be written on the dissolving paper sold in magic shops.”
That’s because the city can get around the ruling by eliminating a provision in its contract with Catholic Social Services that gives the commissioner of the department of human services the authority over exemptions from the general anti-discriminatory law. If that were to happen, Alito noted, “then, voilà, today’s decision will vanish – and the parties will be back where they started.”
Will Haun, counsel at Becket Law, said he thought this was highly unlikely.
“One, taking actions that demonstrate that Philadelphia could just change the contract like that either demonstrates selective enforcement and application, which violates the (first amendment) free exercise clause, or, more targeting against Catholic Social Services, which would also trigger the free exercise clause,” Haun said.
Another reason some have called the decision narrow is because it didn’t overturn the precedent set in the 1990 case Employment Division v. Smith, which holds that generally applicable laws not targeting religious practices do not violate the free exercise clause.
Haun said the Smith decision “turns the free exercise clause into just a probation on discriminating against religions.” As Alito pointed out in his concurring opinion, a rule that prohibits wearing hats in court, for example, would satisfy Smith even though it would prevent Orthodox Jewish men, Sikh men and many Muslim women from appearing.
Andrea Picciotti-Bayer, a lawyer and director of the Conscience Project, said that “the Supreme Court in exercising judicial restraint should normally take the narrow approach to resolving conflict.”
“What’s significant about the unanimous nature of the case is the signal that it sends to government actors right now and to the public at large that the free exercise of religion, which is specifically enumerated in the First Amendment, is going to be upheld and vindicated by the court, even by justices who span the ideological gamut,” Bayer said.
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