Catholic Agency Heads to Supreme Court in Fight on Philly Foster Rules

WASHINGTON (CN) — The Supreme Court agreed Monday to decide whether Philadelphia can choose not to contract with a Catholic foster care organization that refuses to place children with same-sex couples.

Represented by religious liberty law firm Becket, Sharonell Fulton and other foster parents licensed through Catholic Social Services filed a federal lawsuit against the city in May 2018.

Sharonell Fulton is a foster parent in Philadelphia with Catholic Social Services. (Photo by Becket via CNS)

After a local media outlet reported that CSS would not place children with same-sex couples, Philadelphia refused to renew its contract with the foster care agency despite the fact that no same-sex couples have ever approached CSS to become foster parents.

There are about 6,000 foster children in Philadelphia and when the case began, the city had contracts with 30 foster agencies, including CSS, that help to place these children. Fulton, the lead plaintiff and a single mother, says she has fostered more than 40 children over the course of 26 years.

Last summer, U.S. District Judge Petrese Tucker ruled in favor of Philadelphia, finding that CSS was discriminating against members of the LGBTQ community in violation of the nondiscrimination clause of its contract.

The Third Circuit affirmed Tucker’s ruling last year, prompting CSS to appeal.

Per its custom the Supreme Court did not release any statement in taking up the case Monday. The writ of certiorari for CSS is the only grant in this morning’s order list among dozens of denials.

Fulton and the other parents ask the court to consider revisiting its decision in the 1990 case Employment Division v. Smith. Justice Antonin Scalia had written at the time that people cannot use religious beliefs to justify not complying with laws that are otherwise valid.

Scalia warned that looser exceptions to state laws “would open the prospect of constitutionally required exemptions from civic obligations of almost every conceivable kind,” including child neglect, drug and vaccination laws.

Along with Fulton, who has fostered more than 40 children over 25 years through CSS, Beck represents foster mom Toni Simms-Busch, a former social worker who recently adopted the children CSS brought into her life.

“CSS has been a godsend to my family and so many like ours. I don’t think I could have gone through this process without an agency that shares my core beliefs and cares for my children accordingly,” Simms-Busch said in a statement Monday through Becket. “We are so grateful that the Supreme Court has agreed to hear our case and sort out the mess that Philadelphia has created for so many vulnerable foster children.”

Lori Windham, senior counsel at Becket, cheered Monday’s writ of certiorari.

“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 in a statement. “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.”

Gupta Wessler attorney Deepak Gupta represents Philadelphia. He has not returned an email seeking comment.

City Solicitor Marcel Pratt predicted that Philadelphia’s rules will be upheld.

“The city of Philadelphia is proud of our longstanding commitment to supporting freedom of religion and preserving equal access to services for all people – regardless of their race, national origin, religion, age, sex, disability, sexual orientation, or gender identity,” Pratt said in a statement. “Abiding by that commitment is central to any contract that the city enters into. 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, as reflected in its original contract and reaffirmed in the most recent contract offered to all foster care providers.”

As the case proceeds, Pratt noted that the city is still working with CSS and other agencies, both secular and religious.

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