Last Wednesday morning, as the nation was waking up from watching election returns until the wee hours, the U.S. Supreme Court heard oral arguments in a major religious freedom case. This was Fulton vs. City of Philadelphia, brought by Mrs. Sharonell Fulton, a lovely, elderly African-American woman who has fostered more than 40 children in the worst of emergency circumstances for the last 25 years through Philadelphia’s Catholic Social Services (CSS). You can learn about this beautiful woman and her foster work in this quick video:
Philadelphia’s Catholic Social Services has faithfully and selflessly cared for the most vulnerable there since 1797. But in 2018, officials in the City of Brotherly Love declared they refused to work with CSS on foster care because of its stubborn belief about marriage. You see, they believe marriage is about a husband and wife and that as many children as possible should have the blessing of a mother and father. But as we know, such beliefs can land you in big trouble today. This not only meant that Fulton could no longer foster through the organization she had worked with for nearly three decades. Her city charged she was a a bigot for doing so. So she sued and took her case to the Supreme Court. Fulton explained in The Philadelphia Inquirer how devastating this was to her,
As a single mom and woman of color, I’ve known a thing or two about discrimination over the years. But I have never known vindictive religious discrimination like this, and I feel the fresh sting of bias watching my faith publicly derided by Philadelphia’s politicians.
In last week’s oral arguments, Justice Samuel Alito argued that this was not about discrimination against same-sex couples at all. Rather, he said it was about whether people could be marginalized in vicious ways for their faith. Alito challenged Neal Katyal, the lawyer representing the city of Philadelphia, that “if we are honest about what’s really going on here,” this case is “not about ensuring that same-sex couples in Philadelphia have the opportunity to be foster parents.” Alito held it was really about “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.” “Isn’t that that the case?” Alito asked. Of course, Katyal disagreed with this framing.
But Justice Alito persisted, asking Katyal if it was true that CSS had never actually turned away any same-sex couples and that if any such couples did come to them interested in foster care, they would happily refer them to one of the many agencies in town that do work with same-sex couples. Katyal admitted to Alito, that yes, “CSS told us that if this happens, this is precisely what they would do.”
Justice Brett Kavanaugh followed up in questioning Lori Windham, the lawyer defending CSS and Mrs. Fulton, to confirm this very thing. He asked her to confirm that, “no same-sex couple has ever come to Catholic Social Services for participation in this program, and, therefore, Catholic Social Services’ policy has never actually denied any same-sex couple the opportunity to be foster parents in Philadelphia.”
Windham answered Kavanaugh,
CSS is not going to prevent any same-sex couple from being able to foster in Philadelphia. There are many other agencies out there. They’re merely asking to be able to step aside and recuse if that situation ever to — were ever to arise. It also demonstrates the City doesn’t have a compelling interest here. This is a system that has worked effectively and worked well for many years. This is an unnecessary conflict. The City of Philadelphia had an easy option here, which is to allow Catholic Social Services to continue the great work that it’s been doing.
So it would seem, the City’s canceling of the CSS’s contract was not about how it actually treated same-sex couples, but merely what they believed. Justice Kavanaugh continued, noting that in the last few years, this very Court assured the nation that the legalization of same-sex marriage would not encroach on religious freedoms, that this “was the promise explicitly written by the Court in Obergefell and in Masterpiece,” and thus the Court “explicitly promised that respect for religious beliefs.”
But Kavanaugh questioned whether this was precisely what was happening to CSS and Mrs. Fulton here. He charged that the City of Philadelphia “was looking for a fight” over religion “and has brought that serious, controversial fight all the way to the Supreme Court even though no same-sex couple had gone to CSS, even though 30 agencies are available for same-sex couples, and even though CSS would refer any same-sex couple to one of those other agencies.” Kavanaugh explained to Katyal and his team, “And what I fear here is that the absolutist and extreme position that you’re articulating would require us to go back on the promise of respect for religious believers.”
The results of this case will be announced next summer. But we must remember that the right of all Christians, Jews, Muslims and any other faiths to believe that family rests upon the good foundation of husband and wife, a mother and a father, is well established as a “first freedom” in our Constitution. And this court must recognize that this right is not eclipsed by some adult’s desire to parent a child in an intentionally motherless or fatherless family. That is because no non-biological adult has a right to any child in the first place. But children do have a fundamental, human right to a mother and father, and organizations like Philadelphia’s Catholic Social Services and citizens like Mrs. Fulton that help them achieve this should be celebrated, not dragged into court for that belief, even though they have never discriminated against anyone.
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