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U.S. Supreme Court Unanimous in Support for Faith-Based Foster Care Agency

In a unanimous 9-0 ruling, the U.S. Supreme Court found that the City of Philadelphia discriminated against Catholic Social Services because of the foster care agency’s religious views. This is undoubtedly a victory for religious freedom, but especially for the children of Philadelphia who are in need of forever homes.

The case of Fulton v. City of Philadelphia began in 2018, when Philadelphia announced it would no longer refer families to Catholic Social Services (CSS), a faith-based foster care agency that has served the city over 50 years and had placed 226 children in foster homes the previous year. The foster care agency—in line with Catholic teaching—would only place children in homes with a married mother and father, and the City of Philadelphia refused to provide CSS any sort of religious exemption from its new policy, which required agencies to place with same-sex couples as well. Despite the fact that the city had urgently called for 300 more foster parents just days before, Philadelphia chose to prioritize its new policy over the needs of children.

CSS and 3 affiliated foster parents including Sharonell Fulton filed a lawsuit against the City of Philadelphia, and while two lower courts sided against CSS, the High Court unanimously ruled in favor of the foster care agency yesterday. The majority opinion, authored by Chief Justice John Roberts, stated, “[…] Including CSS in the program seems likely to increase, not reduce, the number of available foster parents.” He concluded, “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 [the Free Exercise Clause of the] First Amendment.”

While yesterday’s ruling is a victory for Catholic Social Services, it did not address the broader, critical issue of how to resolve the conflict between certain laws and the First Amendment freedom of the free exercise of religion. Justices Alito and Gorsuch filed concurring opinions, joining each other in both along with Justice Thomas, in which they called out the majority opinion for failing to tackle this important issue. “Perhaps our colleagues believe today’s circuitous path will at least steer the Court around the controversial subject matter and avoid ‘picking a side,’” stated Justice Gorsuch. “Dodging the question today guarantees it will recur tomorrow. These cases will keep coming until the Court musters the fortitude to supply an answer. Respectfully, it should have done so today.”

In a 76 page concurring opinion—compared to the 15 page majority opinion—Justice Alito addressed many concerns with the current state of the law in this area. As a possible solution, he suggested a return to the understanding prior to a 1990 ruling of the Court: “A law that imposes a substantial burden on religious exercise can be sustained only if it is narrowly tailored to serve a compelling government interest.” Looking at the majority opinion, he wrote, “The Court has emitted a wisp of a decision that leaves religious liberty in a confused and vulnerable state. Those who count on this Court to stand up for the First Amendment have every right to be disappointed—as am I.


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