A major religious freedom case dealing with faith-based foster care agencies will be heard by the U.S. Supreme Court in the fall, and a widely diverse group consisting of 16 states, 76 members of Congress, numerous religious organizations and law professors have chimed in on the side of religious freedom with an incredible 34 friend-of-the-court briefs.
The friend-of-the-court documents, also known as amicus briefs, were filed in the case of Fulton v. Philadelphia. The controversy arose when Philadelphia attempted to shut down Catholic Social Services’ (CSS) foster care agency because the agency would only place children with a married mother and father due of its religious beliefs. CSS had successfully contracted with the city for over 100 years placing foster children in homes, until the city attempted to condition those contracts on requiring CSS to approve same-sex couples as foster parents.
CSS offered to refer any same-sex couples to one of the dozens of other agencies that do business with the city, but officials refused and in 2018 terminated CSS’ relationship with the city. Sadly, at the same time as it was terminating the CSS contracts, Philadelphia was also putting out an urgent call for 300 more foster care families in the city.
The only reason for the city’s vindictive actions in a time of great need for more foster care placements was its hostility to the religious beliefs of CSS.
Two foster moms who have worked with CSS over the years joined with the agency in bringing a civil rights lawsuit against the city, charging that Philadelphia officials violated their constitutional rights by terminating CSS on the basis of religious belief.
Unfortunately, two federal courts thus far have decided in favor of the city, ruling that Philadelphia’s ordinances and contracting policies allow it to discriminate against the faith-based agency in order to promote same-sex marriage. Earlier this year, the Supreme Court agreed to take up the CSS appeal, and the case will be argued this fall.
Much like Colorado’s laws that were used to deny Jack Phillips’ religious conscience rights in Masterpiece Cakeshop, Philadelphia’s non-discrimination law has been weaponized to ensure that all religious objection to same-sex marriage is eradicated from the public square, even if it means needy children are denied foster homes.
As in Masterpiece Cakeshop, other entities exist that will serve same-sex couples for their particular needs. Any such couple who wants to will be able to become foster parents in Philadelphia, but tolerance toward CSS’ religious beliefs is not on the agenda of Philly’s city government. The shame of it is that the federal courts have, so far, agreed with them.
And that is because of a 1990 Supreme Court precedent, Employment Division v. Smith, that modified earlier decisions of the court in such a manner that it now has the practical effect of allowing governments to discriminate against religion if they hide behind so-called “neutral laws of general applicability.” With the onset of sexual orientation and gender identity laws (SOGI) framed as non-discrimination laws, religious discrimination has been justified, even encouraged, at the state and local level. At a time of increasing governmental hostility toward religion, the Smith precedent makes a bad situation worse.
The Supreme Court is being urged in this Philadelphia case to revisit Smith and modify or perhaps even overrule it and return to the pre-1990 understanding of religious freedom. If the court does so, much-needed protection for religious conscience would be the result. Let’s pray and hope for a just result as the justices consider the arguments in this case.
The case is Fulton v. Philadelphia.
Photo from Becket Law