Children Are the Real Winners in ‘Fulton v. Philadelphia’

Foster parents who care for children through the agency of the local Catholic Social Services could be empowered by yesterday’s U.S. Supreme Court decision to continue this selfless service.

Philadelphia foster mom Sharonell Fulton alongside two of her foster children.
Philadelphia foster mom Sharonell Fulton alongside two of her foster children. (photo: Courtesy photo / Becket Fund)

PHILADELPHIA — This is a story about a legal case that rose all the way to the Supreme Court and shocked a nation. It is considered a news story, an important one. It is also a story about a splintered high court that unanimously came together to defend religious liberty and because of that it is considered a political story.

In the end, however, this is a story about three mothers who dedicated their lives to children. Theirs is a beautiful story of love, faith, and perseverance.

Cecilia Paul, Sharonell Fulton and Toni Simms-Busch all cared for and loved for children in Philadelphia when few others would.

For four decades, Cecilia Paul with the help of Catholic Social Services (CSS) quietly brought in more than 130 foster children into her Philadelphia home. She adopted six of them. A former nurse in a children’s hospital, she had said that “caring for children in need” was her “life’s work. In 2015, the city of Philadelphia honored her as the “Outstanding Foster Parent of the Year.”

Sadly, just three years later she would be forced to sue that same city. In March 2018, the city government ceased placing children with foster parents that partner with Catholic Social Services demanding that the agency change its religious practices or close their crucial ministry. The city cut off CSS for its refusal to place children with same-sex couples despite the fact that the agency serves all children in need, regardless of race, religion or sexual orientation.

The city had an existing exemption policy but had never used it. 

As part of the Catholic Church, however, the agency couldn’t endorse same-sex or unmarried couples as agency partners serving foster children in need. CSS did say they would refer same-sex couples to another one of the thirty agencies that can partner with them. But that wasn’t enough. 

Cecilia Paul urged the City of Brotherly Love to reconsider its decision but the city refused.

The suit, filed by Paul along with two other mothers, immediately gained national attention because of the case’s clearly national ramifications. 

Paul saw the city’s decision as an attack on her faith. According to the suit, Paul said, “The city won’t let me care for any more foster children because I work with an agency that shares my faith. The city’s actions have left my home empty, and I have felt lost without being able to continue my life’s work.” 

Sadly, Cecilia Paul died shortly after filing the suit, which continued with plaintiffs Sharonell Fulton, who has cared for more than 40 foster children in the past 25 years, and Toni Simms-Busch, who adopted two boys through CSS.

“My faith has led me to become a foster mother to children that society had abused and discarded,” said Fulton, according to a release by the Becket Fund for Religious Liberty, which argued the case in court. “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.”

Together the two women continued the case. On April 22, 2019, the Third Circuit denied Catholic Social Services’ request to protect its ministry but that didn’t deter them. In July 2019, they asked the Supreme Court to take up the case. On February 24, 2020, the Supreme Court agreed.

Oral arguments took place on Nov. 4, 2020 and on June 17, 2021, the U.S. Supreme Court unanimously ruled in favor of 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 in a video statement. “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.”

Archbishop Nelson Perez of Philadelphia said in a call with reporters that the decision from our nation’s highest court is a “profound one that rings loudly in Philadelphia and reverberates throughout the country.” He said it “brings light and relief for children in need of loving homes and for the heroic foster parents who open their hearts and doors to care for them.”

In a press conference just hours after the decision, Becket Senior Counsel Lori Windham called the decision a First Amendment victory that protects the right of religious organizations to serve those in need without giving up the religious beliefs that motivate their ministry.

“Religious organizations should be free to serve the public, regardless of their beliefs,” she added. “The public square is big enough to accommodate everyone who wishes to do good – and that should be especially true when it comes to taking care of children in need.”

Archbishop Perez called the ruling a “crystal clear affirmation of First Amendment rights for the Archdiocese of Philadelphia and all charitable ministries in the United States who are inspired by their faith to serve the most vulnerable among us.” 

The saddest part is that in the end it was children who paid the price for this. Windham told the Register that “Philadelphia admitted there were more than 200 children in group homes or institutions who needed families, but couldn’t be placed with families who partner with Catholic Social Services.” 

She added that many “families who depend on Catholic Social Services have empty beds in their homes.”

In the past few years as the case made its way through the courts, CSS continued to serve a small number of foster children who were with them in 2018. CSS has said it would be forced to close its foster care operations if it is unable to participate in Philadelphia’s program.

Windham said that because of this ruling there is renewed hope that they will be able to continue serving the children of Philadelphia as they have done for centuries.

She added that the unanimous court’s “strong endorsement of religious freedom” should mean more homes for children and more support for families in the near future.

But that hope may not necessarily be realized in the near future as the city has yet to announce a decision in response to the ruling.

While the nine justices unanimously agreed that the city’s actions were an unconstitutional violation of CSS’ rights, the next step remains murky. 

Many, on both sides of this issue, were hoping that the court would make a definitive ruling on religious rights in the face of non-discrimination policies but Chief Justice John Roberts sidestepped that issue and pointed to Philadelphia’s existing exemption clause in its discrimination policy. Although it had never used that exemption Roberts said the very fact that it existed meant the law couldn’t be applied neutrally.

“The question … is not whether the city has a compelling interest in enforcing its non-discrimination policies generally, but whether it has such an interest in denying an exception to CSS,” Roberts wrote. “CSS seeks only an accommodation that will allow it to continue serving the children of Philadelphia in a manner consistent with its religious beliefs. It does not seek to impose those beliefs on anyone else.”

Justices Samuel Alito, Neil Gorsuch and Clarence Thomas strongly criticized this move. 

“This decision might as well be written on dissolving paper sold in magic shops,” they wrote. “If the city wants to get around today’s decision, it can simply eliminate the never-used exemption power. … Then voilàà, today’s decision will vanish — and the parties will be back where they started.”

Justice Amy Coney Barrett wrote an opinion arguing the court should have overturned precedent.

Cynthia Figueroa, Philadelphia’s Deputy Mayor and commissioner of Human Services told the Philadelphia Inquirer that the city is considering its next move, which may or may not include allowing CSS to continue their work to help children and families.

If the city wishes to continue this fight, the case will continue.

But Simms-Busch said she hoped the ruling would allow CSS to continue its great work. 

“Catholic Social Services saved the lives of my children and gave me the greatest blessing of all, the gift of motherhood,” she said. 

Archbishop Perez called the ruling a victory with national ramifications but focused his praise specifically for the three mothers who stood up for their faith and love. 

“Today we celebrate foster mothers like Sharonell Fulton, who has cared for over 40 foster children over the past 25 years, and Toni Simms-Busch, who has adopted two young boys in partnership with Catholic Social Services. We also lift up the memory of Cecilia Paul, whose legacy of selfless devotion to children is memorialized in a decision to protect the ministry that helped her save lives. Without their tireless and selfless efforts, today would not have been possible.”

U.S. Supreme Court Building

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