The Supreme Court’s newly confirmed Associate Justice Amy Coney Barrett will have little time to rest. On Wednesday, the day after the election, she will join the other justices in hearing oral argument in Fulton v. Philadelphia. 

Fulton is one of the most important civil rights cases to be heard in recent times. It concerns the right of a Catholic foster care agency not to violate deeply held religious beliefs by certifying  civilly married same-sex couples as foster parents. The case originates in Philadelphia — the so-called “City of Brotherly Love.” In 2018, officials there demanded that the Archdiocese of Philadelphia’s foster care agency certify same-sex married couples as foster parents. The archdiocesan agency refused to do so, noting that endorsing such unions is inconsistent with Catholic teaching on marriage. The agency proposed referring any same-sex married couple interested in fostering (none had ever approached the agency) to one of the 29 other agencies working with the city. 

Catholic Social Services, it is important to note, does not oppose certifying and working with individuals with same-sex attraction. And the Catholic agency accepts children for foster care placement regardless of race, sex, creed, disability or sexual orientation. The city, however, labeled the agency a would-be discriminator and stopped referring new children to the agency. It later refused to renew the agency’s contract, ending a decades-old partnership. Foster mothers and the agency filed suit, seeking judicial relief so they could be #FREEtoFOSTER.  

Sharonell Fulton and Toni Simms-Busch, the foster mothers petitioning the Supreme Court, are foster care heroes. Sharonell and Toni are single women of color who have been called to help at-risk kids break the cycle of foster care. They choose to work with Catholic Social Services because they want the support of an agency that shares their faith and values. And they are not alone. 

An amicus brief I filed in the Supreme Court includes the stories of former foster children and foster/adoptive parents who shared their positive experiences with Catholic-run adoption and foster care agencies. These agencies made a real and significant impact in the lives of children whose biological parents failed to offer the love and support they deserved. 

Thomas Paul credits his foster mother Cecilia Paul, one of the original plaintiffs in this lawsuit and who has since passed away, and Catholic Social Services for “all of the opportunities” he had growing up. Long-time foster mother Karen Quinn says that the agency went “above and beyond” meeting the material needs of children placed in her home. Her kids received the help they needed right away and “without being placed on a waiting list.” 

Foster mother Winnie Perry similarly notes that the agency staff were there for “anything I couldn’t handle.” Adrienne Cox credits Catholic Social Services with offering something “unique” to this former foster child. Cox believes that has something to do with their expectations of their foster parents that made her experience different from what was experienced by other former foster children she has known. That’s why, when she and her husband chose to become foster parents, they chose Catholic Social Services to help them become foster parents. Her connection is so strong that she refers to Catholic Social Services as “my agency.” 

Placing agencies are not simply matchmakers. They offer important supports for children and their foster or adoptive families. Shutting agencies like Catholic Social Services down or forcing them to close is a national disgrace.
Fulton is also an important case for religious freedom because the Supreme Court may revisit an important religious liberty case decided in 1990, Employment Division v. Smith. The court in Smith held that religious objectors are not constitutionally entitled to exemptions from neutral, generally applicable laws. In practice, Smith has proved unworkable. The lower courts reviewing Fulton, for instance, ignored evidence that the city of Philadelphia targeted the Catholic agency and that its anti-discrimination policy was riddled with exceptions. Smith inadvertently gives legal cover for public officials to restrict religious freedom under the guise of neutrality.
Balancing policy interests with constitutional guarantees is a tricky business. But it is possible. Accommodating Catholic agencies by allowing them to make referrals (something done for a variety of reasons) harmonizes interests and keeps services flowing. Catholic Social Services understands this and went out of its way to propose an alternative — referring any same-sex couple that came to them to another agency. 

The city, however, wasn’t interested in finding a mutually acceptable solution. They would rather keep children in group homes than place them in loving homes supported by the Catholic agency. Such blindness to the needs of suffering children adds insult to their injury. 

The number of children in foster care in this country is close to half a million. The effects of the coronavirus pandemic on homes struggling economically and socially will most certainly exacerbate the foster care crisis. Sadly, Philadelphia’s intolerance is not uncommon. Many faith-based foster care and adoption agencies, like those in Washington, D.C., Boston, the state of Illinois and Buffalo, New York, have closed operations in the face of similar bullying by government officials. A few holdouts remain. When the state of Michigan reached a settlement agreement with the ACLU that requires all private adoption and foster care agencies to work with same-sex couples despite a state law allowing for religious exemptions, Catholic-run agencies and beneficiaries pushed back. Their lawsuits are pending the Supreme Court’s resolution of Fulton.
In 2016, the Supreme Court in Obergefell v. Hodges announced a constitutional right to same-sex marriage. The author of the majority opinion, Justice Anthony Kennedy, recognized that many Americans’ conception of marriage is formed by sincerely held religious beliefs. 

“The First Amendment ensures that religious organizations and persons are given proper protection as they seek to teach the principles that are so fulfilling and so central to their lives and faith and to their own deep aspirations to continue the family structure they have long revered,” he wrote in the majority opinion. Philadelphia’s rigid demand that all private groups endorse same-sex marriage in order to place foster children in loving homes, disregarding religious freedom, ignores Kennedy’s admonition.
Protecting religious freedom and the interests of same-sex couples can be harmonized. Let us hope that the Supreme Court in Fulton takes the opportunity to do so with clear guidance. If it fails to do so, the biggest victims will be the many children waiting for a safe and loving place to call home.