Supreme Court Unanimously Protects Catholic Foster Care Agency

COMMENTARY: Today’s undivided decision ought to do much to lessen this public flogging and its intimidation on the participation of religious people and organizations in the civic, economic, and public life of the nation.

Sharonell Fulton has fostered more than 40 children. She plants a tree or rose bush in her front yard with her foster children as a symbol of their growth.
Sharonell Fulton has fostered more than 40 children. She plants a tree or rose bush in her front yard with her foster children as a symbol of their growth. (photo: Becket)

The Supreme Court Thursday handed down its decision in Fulton v. City of Philadelphia, the case involving the question of whether the City of Philadelphia could refuse to contract with a Catholic foster care agency based on its religious beliefs about marriage. In a 9-0 decision, the court held that the city’s refusal violated the free exercise clause of the First Amendment to the U.S. Constitution.

This case arose in 2018 when the City of Philadelphia stopped referring children to Catholic Social Services and would not renew its contract with CSS unless the agency agreed to abandon its religious practice of refusing to certify same-sex couples for placement. The city relied upon the non-discrimination provision in its contract with the agency, as well as its citywide sexual orientation and gender identity law, the Fair Practices Ordinance.

Notably, CSS’ religious beliefs preclude it from placing children with unmarried couples generally, and it does not object to placing children with single foster parents. No same-sex couple ever sought certification from CSS, but if it did CSS said that it would refer the couple to one of the other 20 agencies in Philadelphia that will place children with same-sex couples. CSS also serves all children in need, regardless of race, religion or sexual orientation. 

In response to the city’s actions, several foster parents and Catholic Social Services filed suit alleging that the city had violated the free exercise and free speech clauses of the First Amendment.

In its decision, the Supreme Court unanimously held that the city’s actions unconstitutionally burdened CSS’s free exercise of religion. The majority opinion, written by Chief Justice John Roberts and joined by five justices, determined that the non-discrimination provision in the city’s foster care contract was not “generally applicable” because it allowed exceptions based on the “sole discretion” of a city official. Further, the court held that the city did not have a “compelling interest” in denying an exception to CSS. 

These legal terms are part of the court’s governing test for free exercise cases, Employment Division v. Smith (a 1990 decision authored by the late Justice Antonin Scalia). Under that decision, laws which incidentally burden religion are ordinarily upheld if they are neutral and generally applicable. If they are not, courts must employ a more rigorous test to determine if the government has a compelling interest and that the law is narrowly tailored to serve that interest. More on Smith in a moment.

The chief importance of Fulton is its unanimity. Those who, like CSS, adhere to the belief that marriage is the “sacred bond between a man and a woman” are increasingly labeled as bigots who use religion as a guise for repugnant discrimination. 

Indeed, the city’s attorney stated at oral argument that the facts of this case, involving same-sex couples, should be treated similarly to cases involving racial discrimination (in which the government’s compelling interest in eradicating discrimination justifies infringement on religious belief). 

Not one justice wrote to compare CSS’s religious belief on marriage to racial discrimination. Today’s undivided decision ought to do much to lessen this public opprobrium and its intimidating impact on the participation of religious people and organizations in the civic, economic, and public life of the nation.

To further underscore the importance of this unanimity, every single justice affirmed the importance of the work that faith-based organizations do in the sphere of child welfare. 

In the majority opinion, Roberts recounted the historical roots of faith-based participation in child welfare noting that “[t]he Catholic Church has served the needy children of Philadelphia for over two centuries.” Moreover, he acknowledged that religious institutions have remained essential partners, nothing that the “Philadelphia foster care system depends on cooperation between the City and private foster agencies like CSS.” 

In Justice Samuel Alito’s concurrence (reflecting the views of the remaining justices), he praised Catholic foster care agencies for having “a long record of finding homes for children whose parents are unable or unwilling to care for them. Over the years, they have helped thousands of foster children and parents, and they take special pride in finding homes for children who are hard to place, including older children and those with special needs.” 

Far from marginalizing religious organizations, all nine justices recognized the enormous contribution such groups make to the public welfare. 

A broad consensus that government routinely relies upon and benefits from the good work of religiously motivated groups is especially critical at a time when there are renewed efforts to pass the Equality Act, a law which would federalize the policies embodied in the city’s position and that explicitly provides that federal religious freedom protections would not apply in its enforcement.

While the case has enormous significance for faith-based organizations, for legal analysts, the court’s decision is quite narrow. 

First, the outcome depends on the court’s recognition that CSS’ contract with the city allowed exceptions. Therefore, the decision leaves open the possibility that the city could simply amend its contract to eliminate any exceptions and, as Alito says in his concurrence, “it if does that, then, voila, today’s decision will vanish — and the parties will be back where they started.” 

Additionally, since the court found that the city’s action violated the free exercise clause, the court did not find it necessary to address CSS’s separate claim that the free speech clause had also been violated. 

Second, for many, today’s decision was a missed opportunity to overrule Smith. Interestingly, Justice Amy Coney Barrett, who clerked for Scalia and who has been called his protégé, called into question Smith in her concurrence, musing about what legal test should replace it. Justices Brett Kavanaugh and Stephen Breyer joined her. 

Three justices, Clarence Thomas, Alito and Neil Gorsuch, concurred separately to argue that Smith was wrongly decided and should have been overturned. Alito, in a historical tour-de-force, called Smith a “severe holding,” noting that if the Volstead Act (which implemented prohibition) had not contained an exception for sacramental wine, it would have been upheld as a neutral, generally applicable law under Smith — but it would have prevented the celebration of the Catholic Eucharist nationwide. 

There is a strong argument that Fulton is a “punt” by the court, that it doesn’t resolve the heart of the matter for the clash between non-discrimination laws and the public expression of religious beliefs, and that it will lead to further, endless litigation.

One hopes that conversations are happening today in faith-based organizations about a renewed participation in serving vulnerable children and families through the foster care system. 

Catholic Charities has shut down foster care and adoption services in many major cities throughout the country, including Chicago, San Francisco, Boston and Washington, D.C. Nationwide, Bethany Christian Services voluntarily rescinded its religious affirmation of marriage and began placing children with same-sex couples. 

The Fulton decision sends a welcome message to all faith-based organizations, whether in child welfare or some other social service, that they do not have to abandon their religious beliefs nor must they exit the public square altogether. 

Whatever one’s political or religious allegiances, there is wide agreement that there is a pressing and severe “foster care crisis.” There are enormous and wide-ranging challenges giving rise to the need for foster care (e.g., poverty, addiction, and a dramatic decrease in community support for all families, to name a few). Not surprisingly, there is great difficulty in identifying reform efforts of a one-size-fits-all nature. Do we focus on the costs and efficiencies of the foster care system? On preventing children from entering the foster care system in the first place? On prioritizing permanency planning for children in foster care? On post-placement support services for foster and adoptive families? On accompanying older foster care children and those aging out of the system? 

Yes — to all the above. 

But, above all, we need every pair of hands serving vulnerable children and families. Faith-based organizations are drawn to this service precisely because of their religious commitments. Today’s unanimous decision in Fulton ensures that faith-based organizations can continue to live out their religious belief through service in the public square as they have done for centuries — and will do for centuries to come.

Elizabeth Kirk is a research associate and lecturer at the Columbus School of Law at The Catholic University of America, where she focuses on child welfare and adoption law and policy. She and her husband have welcomed four children through adoption and have served as foster parents.