Supreme Court Hears Arguments in Philadelphia Foster Care Case

Sharonell Fulton and Toni Simms-Busch, who have fostered more than 40 children and who partnered with Catholic Social Services, brought the case against the city that is currently before the Supreme Court.

United States Supreme Court in Washington, D.C.
United States Supreme Court in Washington, D.C. (photo: Ian Hutchinson / Unsplash)

WASHINGTON — On Wednesday morning, the Supreme Court heard arguments on a Pennsylvania adoption case, as senior U.S. bishops warned of the case's potential consequences for religious freedom and the role of Catholic welfare agencies in American public life. 

Fulton v. City of Philadelphia concerns the right of religious individuals to serve as foster carers while holding religious views about the definition of marriage. In 2018, the city of Philadelphia notified Catholic Social Services with the Archdiocese of Philadelphia that their policies of not working with same-sex couples on foster care placements were discriminatory; the city stopped contracting with both services. 

Sharonell Fulton and Toni Simms-Busch, who have fostered more than 40 children and who partnered with Catholic Social Services, brought the case against the city that is currently before the Supreme Court.

Writing in the Philadelphia Inquirer on Sunday, Archbishop Nelson Perez said that the city’s intransigence was excluding Catholics from living out a vocation of service, and leaving the most vulnerable children without a loving home.

“Essentially, we are being told that the Catholic Church must leave its faith at the door if it wants to serve those in need,” Archbishop Nelson said. “But our faith compels us to do this work, and we have a right to conduct ourselves according to the tenets of our faith.”

“Each of our families is an agent for peace and healing, not just in the lives of the children they so generously bring into their homes, but in the neighborhoods they help to build up one person at a time,” he said.

“We do much more than temporarily fill a gap in the lives of vulnerable children in need of a loving home. We work to empower individuals seeking to restore their communities by making a difference in the lives of young people.”

On Wednesday morning, justices and attorneys both brought up the city’s relationship with Catholic Social Services, probing whether the arrangement was a contract or a license.

If it was merely contractual, attorneys for the city argued, then the city could be free to set the requirements without having to balance its interests with the rights of religious agencies.

However, if the city were effectively granting foster care licenses to prospective partners, then it could be accused of discriminating against Catholic Social Services as the religious beliefs of the ministry disqualified it from the program.  

“What the city is asking Catholic Social Services to do here is to certify, validate, and make statements that it cannot make,” Lori Windham argued for the plaintiffs. The Catholic organization could not in conscience “evaluate, assess, and approve” a same-sex couple for foster care placements, as required by the city.

Justice Amy Coney Barrett, who heard arguments in her first major religious freedom case at the court since her confirmation last week, asked if an entity could even participate in foster care without a contract with the city.

Lawyers argued for the city that contracts were essential because the city has a lawful interest in overseeing the entire foster care system. “This is about the city’s own kids,” the court was told.

Barrett posed a hypothetical scenario of a city overseeing its health care system, and a Catholic hospital being required to provide abortions to contract with the city. She asked if the situation was a licensing or a contracting scenario, given that the hospital could not participate in health care without abiding by the requirement.

Justices Samuel Alito and Brett Kavanaugh both had strong language for the city’s attempts to impose compliance on Catholic Social Services, with Kavanaugh referring to the city’s position as “absolutist and extreme.”

The case, Alito said, is not about the city ensuring opportunities to be foster parents but rather shows its disdain for beliefs in traditional marriage. He said “the city can’t stand the message” of Catholic Social Services “continuing to adhere to the old-fashioned view about marriage.”

Kavanaugh said that it “seems like” Philadelphia was “looking for a fight” in requiring the ministry to contradict its religious beliefs on marriage even though it had not denied a same-sex couple the opportunity to be foster parents.

“I fully appreciate the stigmatic harm” of same-sex couples denied opportunities to adopt, he said, adding that “we need to find a balance that also respects religious beliefs.”

“This is a system that has worked effectively and worked well for many years,” he said of Catholic Social Services.

New York’s Cardinal Timothy Dolan also weighed in on the successful history of social service to wider American society. 

Writing in USA Today on Nov. 4, Dolan noted the long history of Catholic agencies and individuals in America working to alleviate suffering and need, especially in times of crisis like the ongoing coronavirus pandemic.

“Most of the Church’s ministry was established in the face of crises and epidemics, much like what we are experiencing today,” said Cardinal Dolan. “And yet our charitable work seemingly never escapes the ageless adage that "no good deed goes unpunished." 

Noting the more than 8,000 faith-based adoption agencies working with government bodies across the U.S., “not to mention the countless thousands of Catholic soup kitchens, homeless shelters, prison ministries, immigration legal services, and other social services supported by the Catholic Church.” 

“The Church serves these children without discriminating on the basis of sex, sexual orientation, religion, or race.” 

“Indeed,” Cardinal Dolan said, “the only discrimination to be found is that of Philadelphia officials who target our ministries because they disagree with what the Church believes.” 

“Our nation has slowly but surely rooted out such bigotry. It should finish the job.”