Why Supreme Court ruled in favor of Catholic foster care agency

By Ariane de Vogue, CNN Supreme Court Reporter

The Supreme Court on Thursday said that Philadelphia violated the First Amendment when it froze the contract of a Catholic foster care agency that refused to work with same-sex couples as potential foster parents because the agency believes that marriage should be between a man and a woman.

The dispute arose because Catholic Social Services — which was receiving taxpayer funds — was unwilling to work with LGBTQ couples as foster parents out of religious objections to same sex marriage. The policy was brought to the attention of the city in 2018 after inquiries from a local newspaper, and soon after the government put a freeze on the contract. The group, led by long-time foster parent Sharonell Fulton who has fostered more than 40 children over 25 years, brought suit.

The issue before the court was whether Philadelphia could require foster agencies to comply with its non-discrimination law.

Chief Justice John Roberts wrote the majority opinion for six of the nine justices. Justices Thomas, Alito and Neil Gorsuch joined in the result, but did not join the majority’s rationale — and was disappointed at the result.

“The Court has emitted a wisp of a decision that leaves religious liberty in a confused and vulnerable state,” Alito wrote. “Those who count on this Court to stand up for the First Amendment have every right to be disappointed — as am I.”

Catholic Social Services is a religious non-profit affiliated with the Archdiocese of Philadelphia that provides foster care services in the city. It is one of 30 foster care agencies that has a contract with the city that is renewed on an annual basis. When a child in need of foster care enters the city’s custody, the child is referred, by Human Services, to one of the foster care agencies. That agency chooses the appropriate foster parent for the child. The contract includes language prohibiting agencies from discriminating on the basis of race, color, religion or natural origin as per the city’s Fair Practices Ordinances.

A federal appeals court ruled in favor of the city, holding that the policy is a “neutral, generally applicable law, and the religious views of the [Catholic Social Services] do not entitle it to an exception from that policy.” The court held that the foster agency “failed to make a persuasive showing that the City targeted it for its religious beliefs, or is motivated by ill will against its religion, rather than sincere opposition to discrimination on the basis of sexual orientation.”

The court said that the city acted in “good faith” in its effort to enforce its laws against discrimination.

The Catholic charity, represented by the conservative Becket Fund, noted that it has served the city for over 100 years and that no same-sex couples had sought foster-care certification from the agency.

In court, Lori Windham told the justices that the agency was making a “modest” request which is to be able to allow diverse religious agencies to serve the city and get an exemption from the city’s Fair Practices Ordinance. Instead, she said, the city was attempting tell a private religious ministry “how to run its internal affairs and trying to coerce it to make statements that are contrary to its religious beliefs as a condition of continuing to participate in the religious exercise that they have carried out in Philadelphia for two centuries.”

She urged the court to revisit a 1990 case, Employment Division v. Smith, court precedent that holds that a law that burdens religious exercise is not subject to strict scrutiny from the court as long as it applies equally to everyone.

In addition, Windham said that Philadelphia violated free speech guarantees by forcing it to deliver the “government’s preferred message on marriage,” and demonstrating hostility toward its religious beliefs.

Before the election, the Trump administration sided with the foster care agency and argued that the city violated the agency’s rights and showed hostility to its beliefs.

Neal Katyal, a lawyer for the city said that while the organization continues to assist foster children through other government contracts, and can support foster parents in its private capacity it could not contract with the government while sidestepping the city’s non-discrimination requirement. He stressed that neither the district court nor the appeals court found that the agency was targeted for its religious beliefs.

Lawyers for the ACLU, which is involved in the case, said it could have “profound consequences” for the more than 400,000 children in foster care across the country.

This story has been updated with additional details.