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What just happened?

On Wednesday the U.S. Supreme Court heard oral arguments in Sharonell Fulton, et al. v. City of Philadelphia, an important religious-liberty case involving faith-based foster care and adoption providers.

What is the case about?

The plaintiffs in this case, Sharonell Fulton and Toni Simms-Busch, are Catholic women who have extensive experience in the foster-care system. Fulton fostered 40 children, and Simms-Busch worked as a foster-care social worker and child advocate before fostering and adopting children herself. Both chose to partner with Catholic Social Services (CSS) in Philadelphia to foster children because the agency aligned with their religious values and beliefs.

The city of Philadelphia has been partnering with private agencies to facilitate foster care for almost 70 years. Families wishing to foster a child can reach out to one of the 30 agencies allowed to contract with the city. If an agency is unable to partner with a potential foster family, the family is referred to another agency.

According to the lawsuit, CSS “exercises its religion by caring for foster children and acting in accordance with its Catholic beliefs in the process.” Because of these beliefs, CSS cannot make foster certifications inconsistent with its religious beliefs about sex and marriage. The agency refuses to certify unmarried heterosexual couples or same-sex couples and refers such couples to another agency. (Same-sex couples have other options available. Four agencies have the Human Rights Campaign’s “Seal of Approval,” recognizing their “excellence in serving the LGBT community.”)

In 2018, the commissioner of Philadelphia’s Department of Human Services investigated whether religious agencies were certifying same-sex couples. The commissioner summoned CSS for a meeting and told the agency it should follow “the teachings of Pope Francis,” that “times have changed,” “attitudes have changed,” and it is “not 100 years ago.” Minutes later, Philadelphia cut off CSS’s foster-care referrals, meaning no new foster children could be placed with any foster parents certified by CSS. Fulton and Simms-Busch, who were certified through CSS, filed a lawsuit challenging the city’s unlawful exclusion of the Catholic agency.

What are the legal questions being considered in this case?

Three legal questions are presented in this case:

  1. Whether free-exercise plaintiffs can only succeed by proving a particular type of discrimination claim—namely, that the government would allow the same conduct by someone who held different religious views (as two circuits have held)—or whether courts must consider other evidence that a law is not neutral and generally applicable (as six circuits have held).
  2. Whether Employment Division v. Smith should be revisited. (In that case, the court ruled, it has never held that an individual’s religious beliefs excuse him from complying with an otherwise valid law prohibiting conduct which the government is free to regulate.)
  3. Whether a government violates the First Amendment by conditioning a religious agency’s ability to participate in the foster-care system by taking actions and making statements that directly contradict the agency’s religious beliefs.

What was the reaction of the justices during the oral arguments?

According to Amy Howe of SCOTUSblog, by the time Chief Justice Roberts announced the end of oral arguments, “it appeared that CSS and the foster parents likely would be able to garner at least five votes for a ruling in their favor, even if it wasn’t clear what the basis for such a ruling might be.”

Why is this case important?

During the oral argument, Lori Windham, who argued on the plaintiffs’ behalf, pointed out that not only had no same-sex couples in Philadelphia been denied the opportunity to be foster parents as a result of Catholic Social Services’ policy—none had even approached CSS asking for this approval and endorsement. She also noted that CSS was not asking to be allowed to prevent same-sex couples from fostering, but was merely asking to be able to step aside and recuse if that situation were to arise.

Justice Kavanaugh said that when the rights of religious people and same-sex couples come into conflict, the government should “accommodate both interests in a reasonable way” and “should be looking, where possible, for win-win answers, recognizing that neither side is going to win completely on these issues given the First Amendment on the one hand and given Obergefell [the 2015 decision legalizing same-sex marriage in all U.S. states] on the other.”

“But, when I look at this case, that’s not at all what happened here,” said Kavanaugh, who noted that recent rulings promised to respect religious beliefs. “What I fear here,” he added, “is that the absolutist and extreme position would require us to go back on the promise of respect for religious believers.”

Justice Alito was even more blunt in his assessment that Philadelphia was disregarding the religious beliefs of CSS:

Look, if we—if we are honest about what’s really going on here, it’s not about ensuring that same-sex couples in Philadelphia have the opportunity to be foster parents. It’s 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.

The Supreme Court appears poised to hand down another ruling that protects the religious freedom of citizens. But it’s disturbing that the city of Philadelphia seems to care more about forcing a particular view about sexuality than protecting vulnerable children.

Christians can and should fight for both the children and their religious liberty. We care about foster care because we understand the importance of family. We should be just as concerned about whether those children are able to grow up in homes and in a country where they are free to follow Christ.

When will the case be decided?

The final ruling is expected to be handed down in June 2021.

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