WASHINGTON (CN) — Backed by the U.S. government, a Catholic foster care agency that won’t work with gay couples told the Supreme Court on Wednesday that Philadelphia's nondiscrimination policies apply to it unfairly.
“Here the city is reaching out and telling a private religious ministry, which has been doing this work for two centuries, how to run its internal affairs and trying to coerce it to make statements that are contrary to its religious beliefs as a condition of continuing to participate the religious exercise,” said Lori Windham, a lawyer with the religious liberty law firm Becket.
But Windham’s claim of centuries of precedence for her client, Catholic Social Services, drew swift rebuke from Philadelphia's attorney.
“Private entities have never done ‘this’ because, whatever these entities did before, like CSS, they never selected who cares for kids in city custody, applying state criteria,” said Neal Katyal with the firm Hogan Lovells. “The whole point of the modern foster care system is to bring responsibility for those kids inside the government and not to leave it into the private hands.”
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.
Multiple civil liberties groups have intervened on Philadelphia’s behalf, but the U.S. Department of Justice argued Wednesday that there is evidence that the city is not applying its nondiscrimination policy evenly.
“I think it's important to emphasize that the city's rules do consider disability when certifying foster parents, so foster parents can be denied the ability to serve as foster parents because of their disability,” said U.S. Deputy Assistant Attorney General Hashim Mooppan.
“The government itself requires, tolerates, and itself engages in various forms of discrimination on the basis of protected trades for the best interests of children,” Mooppan continued. “But then it turns around and refuses to abide by any form of discrimination, with respect to sexual orientation, in order to deny an accommodation to the Catholic Church.”
The arguments were held remotely Wednesday, as has been the case for months due to the coronavirus pandemic. After the hearing, Becket released a statement from the CSS foster moms who are lead plaintiffs in the case.
“As a single woman of color, I’ve learned a thing or two about discrimination over the years — but I’ve never experienced the vindictive religious discrimination the city’s politicians have expressed toward my faith,” said Sharonell Fulton, who has fostered more than 40 children over the course of 26 years.
Like Fulton, fellow foster mother Toni Simms-Busch credited her faith for leading her to take in children through CSS.
“I’m grateful the justices took our arguments seriously and seemed to understand that foster parents like me just want to provide loving homes for children,” said Simms-Busch. “It does not help anyone for the city to shut down the best foster-care ministry in Philadelphia — particularly when we have loving homes ready for children in need.”
Arguing on behalf of the groups Philadelphia Family Pride and the Support Center for Child Advocates, attorney Jeffrey Fisher told the court that the good work CSS does was never in dispute. But doing good work does not create a ministerial exception to the city rules in place for every contractor.
“This claim therefore implicates the government's managerial interests, as well as the imperative that governmental services are made even-handedly available to all citizens,” Fisher said. “And Free Exercise plans cannot turn on judicial assessments of whether religious views are honorable or offensive.”
CSS has said the case requires a new look at the 1990 Supreme Court case Employment Division v. Smith, where Justice Antonin Scalia held that people cannot use religious beliefs to justify not complying with laws that are otherwise valid.
