PHILADELPHIA (CN) – A Philadelphia-based Catholic agency fought Tuesday afternoon at the Third Circuit for the right to deny same-sex couples a foster child based on its beliefs about marriage.
The lawsuit began back in May when Catholic Social Services sued Philadelphia for ending a contract with CSS because it does not allow households with same-sex couples the ability to foster children.
In July, U.S. District Judge Petrese Tucker ruled in favor of the city, finding that CSS was discriminating against members of the LGBTQ community in violation of the non-discrimination clause of its contract.
Jane Istvan, representing Philadelphia, told a three-judge panel of the Third Circuit on Tuesday that the decision was made to terminate the contract because it felt hypocritical to protect LGBTQ children but not adults.
“We’re okay with you now, but when you grow up we’ll contract with someone who doesn’t believe you deserve a family,” Istvan said sarcastically.
Lori Windham, an attorney with the religious liberty law firm Becket representing CSS, said the contract termination is religious targeting.
Windham argued it is the religious freedom of CSS to not allow same-sex couples to foster children because it goes against the Catholic view of marriage.
But U.S. Circuit Judge Thomas Ambro questioned her position.
“How is the city asking CSS to change its views on marriage?” Judge Ambro asked. “All [its] doing is following procedure.”
Windham pushed back, saying no one has been harmed because no same-sex couples have even sought the services of CSS.
U.S. Circuit Judge Midge Rendell stepped in to note that the city contract’s non-discriminatory clause applies to the other 29 foster care agencies in Philadelphia, not just CSS.
“It was not to address religion,” Judge Rendell said. “It was to address marital status.”
Windham made a point to note that CSS would happily refer any same-sex couple to another foster care organization.
“Discrimination is okay if there are other options that won’t discriminate against you,” mocked Leslie Cooper of the American Civil Liberties Union, which represents LGBT and children’s groups that intervened in the case.
The lead plaintiff in the case is Sharonell Fulton, has fostered over 40 children through CSS.
“With every passing day, vulnerable kids wait for the chance to sleep in their own beds in a loving place they can call home,” Fulton said in a statement. “I worry for these kids, and the two children with special needs in my care, whose futures are threatened because of the city’s decision to discriminate.”
According to the law firm Becket, there are 6,000 foster children in need of a family in Philadelphia.
“The wait to find a foster family is long enough for a vulnerable child, yet the City of Philadelphia has decided to keep at-risk children out of loving homes,” attorney Windham said in a statement. “The court should put an end to the city’s religious discrimination and allow Catholic Social Services to continue doing what it does best: giving children loving families.”
It is unclear when the Third Circuit panel, rounded out by U.S. Circuit Judge Anthony Scirica, will reach a decision.
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