Catholic Foster Care in Philadelphia: How Will the Supreme Court Decide?

COMMENTARY: Oral arguments in the First Amendment case Fulton v. Philadelphia began Wednesday.

Philadelphia foster moms Sharonell Fulton.
Philadelphia foster moms Sharonell Fulton. (photo: Courtesy photo / Becket Fund)

While most Americans spent Wednesday nervously following the twists and turns of the presidential post-election drama, many people of faith were also keeping an anxious eye on the Supreme Court. 

On Wednesday morning, the court heard oral arguments in Fulton v. Philadelphia — not in person but, thanks to COVID-19, over the phone. The atmosphere was slightly surreal, but the consequences of the court’s decision in Fulton will be very real — and could have a huge impact on religious liberty in the United States. Also, this is newly confirmed Justice Amy Coney Barrett’s first week on the job. 

The new arrangements could easily cause confusion, so to simplify matters, Chief Justice John Roberts now invites justices to ask each advocate questions in order of seniority. Much time was spent on Wednesday clarifying the facts in Fulton. They are worth restating. 

In the spring of 2018, city officials in Philadelphia insisted that Catholic Social Services’ foster-care agency — a ministry of the Archdiocese of Philadelphia — certify same-sex civilly-married couples as foster parents. The agency, consistent with Catholic teaching on marriage, refused to do so and instead suggested referring any same-sex couples that approach them — none ever had — to one of the 29 other private placing agencies. 

Unwilling to accommodate the sincerely held religious beliefs of the Catholic agency, the city stopped referring children to the agency and has since refused to renew the agency’s contract. Two foster mothers of color and the Catholic-run agency filed suit in the hope of restoring this long-standing foster-care program. 

How will the court evaluate Fulton? Anticipating its rulings is a risky business, but there was an interesting comment from Justice Stephen Breyer, considered one of the court’s more left-leaning justices. He said: 

“What’s actually bothering me quite a lot about this case is I think that no family has ever been turned down by this agency. Indeed, none has ever applied, no gay family, no gay couple.” 

Justice Samuel Alito hit the nail even more directly on the head, remarking that “if we are honest about what’s 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.” 

Justices Sonia Sotomayor and Amy Coney Barrett wanted to know whether ruling for the petitioners would also allow an agency to refuse to work with interracial married couples on religious grounds. That’s a pretty horrifying prospect, and, fortunately, everyone agreed that it wouldn’t under long-standing case law. 

The city, joined by “LGBTQ” advocacy groups represented by heavyweights from the American Civil Liberties Union, wants to treat Fulton like a run-of-the-mill government contracting case. Justices Sotomayor and Elena Kagan seemed sympathetic to this approach. 

“There are a lot of things that governments do now that traditionally were done by private organizations, religious organizations … a lot of old philanthropy is now regulated and conducted by government,” Kagan observed. 

But there are many problems with construing faith-based foster-care agencies as mere government contractors. One problem is that doing so goes against the historical role that religious entities have played in foster care. Catholic Social Services in Philadelphia, for example, has been in the business of finding homes for needy children for more than 200 years — even before the government entered into the picture. Another issue, raised in response to a question by Barrett, is that the only way to foster in Philadelphia today is to do so in partnership with the city. 

What are the possible outcomes in Fulton? The one proposed by the city and the ACLU would result in the likely exclusion of all Catholic-run, social-service foster-care and adoption agencies from partnering with governments that broadly interpret their anti-discrimination policies to require support for same-sex civil marriage. Another, suggested by Breyer, is that Catholic Social Services and other similar agencies just go ahead and certify same-sex married couples to become foster parents and “add something onto any response you make and say that you do not endorse same-sex marriages.” 

Breyer may find such an “accommodation” acceptable, but Catholic Social Services does not, and it is not the government’s place to second-guess sincerely held religious beliefs.  

Justice Brett Kavanaugh alluded to an outcome designed to balance the interests of both sides: 

“This case requires us to think about the balance between two very important rights recognized by this court, the religious exercise and belief right, obviously in the First Amendment, and the same-sex marriage rights, as recognized in [Obergefell v. Hodges]. And it seems when those rights come into conflict, all levels of government should be careful and should often, where possible and appropriate, look for ways to accommodate both interests in reasonable ways.” 

In fact, finding “a balance that also respects religious beliefs” is “the promise explicitly written by the court in Obergefell,” Kavanaugh asserted, a sentiment echoed by Alito. Indeed, the Obergefell decision had emphasized the “proper protection” given by the First Amendment to ensure that religious organizations and persons can “teach the principles that are so fulfilling and so central to their lives and faiths, and to their own deep aspirations to continue the family structure they have long revered.” 

The overall impression from the Nov. 4 hearing? While it is important not to read too much into questions asked during oral argument, the justices’ exchanges with counsel, combined with what we know of the justices’ opinions in prior religious-freedom cases, suggest that a majority on the court will conclude that the Constitution requires the accommodation of religious beliefs here to which Kavanaugh referred. 

We must certainly hope so, because only such a ruling will allow countless needy children in Philadelphia — and in other cities, too — to find happiness and fulfilment with foster parents provided for them by highly regarded agencies run by people of faith.

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