Catholic Agency Loses Fight Over Philly Foster Rules

PHILADELPHIA (CN) – Philadelphia officials can choose not to contract with a Catholic foster care agency that refuses to place children with same-sex couples, the Third Circuit ruled Monday.

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.

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.

After hearing the agency’s appeal in November, the Third Circuit affirmed Tucker’s ruling Monday.

“The city stands on firm ground in requiring its contractors to abide by its non-discrimination policies when administering public services,” U.S. Circuit Judge Thomas Ambro wrote for a unanimous three-judge panel.

“The current record does not show religious persecution or bias,” he continued. “Instead it shows so far the city’s good faith in its effort to enforce its laws against discrimination.”

In the 50-page ruling, Ambro called the city’s nondiscrimination policy “a neutral, generally applicable law.”

The court found CSS did not make a persuasive argument that Philadelphia refused to contract with the organization because of its Catholic beliefs. They city’s actions were motivated by its sincere opposition to discrimination on the basis of sexual orientation, Ambro wrote.

The Philadelphia Department of Human Services refers children in need of foster care to one of its contracted agencies, which selects an appropriate foster parent or family. The city renews these contracts on an annual basis. The contracts include language prohibiting agencies from discriminating on the basis of race, color, religion or national origin, and requires them to abide by the city’s Fair Practices Ordinance, which prohibits sexual orientation discrimination in public accommodations.

As part of its connection to the Catholic Church, CSS operations incorporate the belief that a marriage is between a man and a woman. It certifies foster parents who are either married or single, and refuses to certify unmarried couples or same-sex couples, all of whom it considers to be unmarried.

 City officials applauded the Third Circuit’s ruling.
“I am grateful for the court’s careful analysis of the case and its thoughtful decision,” Mayor Jim Kenney said in a statement Monday. “Our policy ensures that same-sex couples do not face discrimination as they seek to offer loving homes to Philadelphia children in need of foster care.”

Department of Humans Services Commissioner Cynthia Figueroa echoed that sentiment.

“We want all individuals who are able to provide safe, loving, and welcoming homes to consider fostering,” she said. “The court’s decision means that prospective foster parents will not be unlawfully turned away from our provider agencies and will allow us to best serve the children and youth in our care.”

Meanwhile, Becket senior counsel Lori Windham said in a statement Monday that her clients will appeal the Third Circuit ruling on behalf of dozens of families licensed through CSS who are willing to take in Philadelphia children.

“This ruling is devastating to the hundreds of foster children who have been waiting for a family and to the dozens of parents working with Catholic Social Services who have been waiting to foster a child,” Windham said. “We’re disappointed that the court decided to let the city place politics above the needs of kids and the rights of parents, but we will continue this fight.”

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