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In major religious liberty win, Supreme Court rules that Catholic foster care agency doesn’t have to place children with same-sex couples


In a 9-0 decision, the U.S. Supreme Court has sided with Catholic Social Services and its foster parents, who had been banned by the city of Philadelphia from caring for foster children on the basis of the agency’s religious beliefs about marriage and parenting, a decision that is being hailed as a major victory for the First Amendment as well as the nation’s foster children.

Sharonell Fulton (pictured above) spent 25 years caring for foster children in Philadelphia. The children she brought into her modest home included those who had been severely burnt and needed round-the-clock care and children who arrived on her doorstep, starving, with nothing more than the tattered clothes on their back.

Fulton worked with CSS because they ministered to children and foster parents in accordance with her own deeply-held Catholic beliefs, but when the city refused to refer children to the hard-working agency and its foster parents unless they agreed to work with same-sex couples, she was shut off from caring for children who needed her. With the help of Becket Law, she and two other foster families, along with CSS, sued the city of Philadelphia.

“As a single mom and woman of color, I’ve known a thing or two about discrimination over the years,” Fulton said. “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.”

On Thursday, the High Court unanimously ruled in Fulton v. City of Philadelphia that CSS was well within its First Amendment rights to opt out of the city’s nondiscrimination requirement on the basis of its adherence to the teachings of the Catholic Church.

In the majority decision, Chief Justice John 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…. The refusal of Philadelphia to contract with CSS for the provision of foster care services unless it agrees to certify same-sex couples as foster parents cannot survive strict scrutiny, and violates the First Amendment.”

The majority opinion further explained that “CSS holds the religious belief that marriage is a sacred bond between a man and a woman. Because CSS believes that certification of prospective foster families is an endorsement  of their relationships, it will not certify unmarried couples — regardless of their sexual orientation — or same-sex married couples.”

Roberts was joined by fellow Justices Sonia Sotomayor, Brett Kavanaugh, Amy Coney Barrett, Stephen Breyer, and Elena Kagan. Barrett, Gorsuch, and Justice Samuel Alito also wrote concurring opinions. Justice Thomas, another Catholic on the bench, joined Alito and Gorsuch’s opinion.

In his opinion, Justice Alito noted that while no same-sex couple had ever approached CSS to be certified as foster parents, the city not only tried to force the agency to agree to certify them, but banned placement of foster children in the homes of any family that had previously been vetted by CSS.

“Exemplary foster parents like petitioners Sharonell Fulton and Toni Lynn Simms-Busch are blocked from providing loving homes for children they were eager to help,” he wrote. “The City apparently prefers to risk leaving children without foster parents than to allow CSS to follow its religiously dictated policy, which threatens no tangible harm.”

On hearing the ruling, Sharonelle Fulton responded, “I am overjoyed that the Supreme Court recognized the important work of Catholic Social Services and has allowed me to continue fostering children most in need of a loving home. My faith is what drives me to care for foster children here in Philadelphia and I thank God the Supreme Court believes that’s a good thing, worthy of protection.”

It cannot be overstated how large a victory this ruling is for religious liberty, as well as for children. As Justice Alito also noted in his opinion, people of faith have often felt it a moral duty to minister to children in need, and CSS has every right to answer this call by applying, rather than violating, the moral teachings of the Catholic Church.  

“Philadelphia should never have used the most vulnerable children as leverage to attempt to change the doctrinal beliefs of a religious institution,” Kathryn Jean Lopez, a fellow at the National Review Institute, stated.

“This decision is a victory not just for child welfare providers, but a victory for foster care children who are seeking loving homes,” said Pennsylvania Congressman Mike Kelly, adding that the Court has also “upheld the First Amendment’s guarantee of religious liberty.”

The nine justices of the Supreme Court got it exactly and resoundingly right. No individual or agency should be forced to violate their conscience in order to help children — and children should never be weaponized in the battle against religious freedom.

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