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Wednesday, June 5, 2024 | Back issues
Courthouse News Service Courthouse News Service

Running Afoul of Philly Law, Catholic Foster Care Agency Seeks High Court Exemption

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.

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.”

Toni Simms-Busch poses with two children she fosters through the agency Catholic Social Services. (Becket image via Courthouse News)

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.


Scalia had 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.

“If we did overrule Smith or, frankly, even if we didn't, let's take this out of the same-sex marriage context and put it in the interracial marriage context,” said Justice Amy Coney Barrett, who has been participating in arguments for the first time this week after her Oct. 26 confirmation.

“What if there was an agency who believed that interracial marriage was an offense against God and therefore objected to certifying interracial couples as foster families,” the Trump appointee asked. “Would they be entitled to an exemption? And if so, how is that distinguishable from, or if not, how is that distinguishable from CSS’ refusal to certify children to couples in same-sex marriage?”

Becket’s Windham didn’t offer a direct response.

“It's hard to imagine the city making that kind of concession in a case involving interracial marriage,” she said. 

CSS has accused Philadelphia of trying to coerce its written endorsement of same-sex couples, but Justice Stephen Breyer appeared skeptical that there is evidence of this.

“They say all they're asking you to do is evaluate a couple without reference to whether they are same-sex or not,” Breyer said.

Would the agency have a religious objection if the contract with Philadelphia let it say “whatever [they] want about same-sex,” so long as they evaluated couples only on their fitness to care for children.

Windham fought back on the definition of endorsement, noting that the head of Catholic Social Services had previously testified that “a home study is essentially a validation of the relationships in the home.”

“What the city is asking CSS to do here is to certify validate and make statements that it cannot make, and I'm not aware of any case where this court has said it's OK to compel speech or coerce or just exercise as long as you can tag a disclaimer on to the end of it,” Windham said.

But Fisher, with the Stanford Law School Supreme Court Clinic, pushed back on this.

“I don't think anybody can dispute that if the city wanted to do this work itself, it could,” he said. “And so the only question that you have is whether the analysis is any different because the city is operating through an independent contractor.”

Seeming to lean in favor of CSS, both Justices Samuel Alito and Brett Kavanaugh used their questioning time with Windham to clarify some facts on the record. Alito had her confirm that no same-sex foster parents have ever applied with CSS, and thus none have been denied. 

Kavanagh sought confirmation that Philadelphia contracts with about 30 private foster agencies to find and train and support foster families, and that Catholic Social Services is just one of these agencies. Further, he asked if CSS would refer any same-sex couple ever came its way to another agency so that the couple could be foster parents. Windham confirmed both points.

“The bottom line,” Windham said, “is that CSS is breaking the city's law if it even refers same-sex couples to another agency better suited to help them. ... A properly functioning free exercise clause is supposed to prevent this kind of unnecessary and harmful conflict. There are children in need and loving homes waiting for them.”

Justice Alito also grilled Katyal on the merits of the dispute.

“Look, if we, if we are honest about what's really going on here. It's not about ensuring that same-sex couples in Philadelphia have the opportunity to be foster parents. It's the fact that the city can't stand the message that Catholic Social Services and the archdiocese are sending by continuing to adhere to the old-fashioned view about marriage. Isn't that the case?”

Katyal disagreed, relaying that Philadelphia is still working with CSS as a foster care contractor, but just isn’t allowing the agency to place children anymore. It still holds a $26 million annual contract with the city, he said.

When questioned by Justice Sonia Sotomayor about a possible compromise, Fisher suggested the agency tagline its publicly contracted services.

“If what CSS is concerned about is a perception that by participating in this program they are endorsing marriage for same-sex couples that they can disclaim that and make very clear that all they're doing is following state law, and they are not purporting to speak for themselves in any certifications,” he said.

In a statement on the case, the ACLU called the fight an affront to LGBT rights.

“We already have a shortage of foster families. Allowing agencies to turn away families for reasons that have nothing to do with their ability to care for a child would only make it worse,” said ACLU deputy director Leslie Cooper, another intervenor. “When an organization chooses to accept taxpayer dollars to provide a government service, it doesn’t have a right to pick and choose who it will serve. The stakes in this case couldn’t be higher for LGBTQ people, who face the possibility of the Supreme Court creating a constitutional right to discriminate against us in every aspect of our lives. And the court could open the door to discrimination in any taxpayer-funded program.”

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Categories / Civil Rights, Government, Religion

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