As if a high-stakes presidential election isn’t enough for the first week of November, the U.S. Supreme Court on Nov. 4 will take up a case that goes to the heart of the culture wars fought by the Religious Right for the past four decades: Can religious agencies receiving government funding discriminate on the basis of religion, gender, marital status or sexual orientation?
In Fulton v. Philadelphia, Catholic Social Services challenges the city of Philadelphia’s foster care contracting practices. The city requires agencies that recruit, screen, train and certify foster parents to adhere to the city’s nondiscrimination law, which prohibits agencies from rejecting prospective foster parents based on religion, sexual orientation and other protected categories.
For years, many evangelical faith-based child service agencies have placed various restrictions on who they will work with. Some require foster or adoptive parents to share the agency’s particular religious views, while others focus on household living arrangements that exclude single parents or same-sex couples.
These faith-based agencies — often backed by their parochial donors or denominational bodies — claim the First Amendment’s guarantee of free exercise of religion allows them to discriminate based on their deeply held religious beliefs. The rub comes when agencies cling on to those restrictions while accepting government funding or servicing. Critics say that puts government in the role of establishing or supporting one religious belief over another — also a violation of the First Amendment.
The issue in Philadelphia
This is the heart of the case in Philadelphia, where the city says it has sought to create a level playing field for all agencies that work with foster parents. Because Catholic Social Services would not meet the nondiscrimination requirements of the city, its contract to provide certain foster care services was allowed to expire, even though the city still worked with Catholic Social Services on other issues.
The faith-based agency sued, claiming discrimination by the city. And that, in turn, has set up a monumental case that observers on both sides hope or fear could shift government policy in many other areas where faith-based groups want to set limits on who they will work with and under what terms.
This case has the potential to overturn another controversial Supreme Court ruling called Employment Division v. Smith. Thus, while on the surface the current case is about foster parents, the ripples of this case’s outcome will reach much further into the culture wars.
While on the surface the current case is about foster parents, the ripples of this case’s outcome will reach much further into the culture wars.
The plaintiffs in this case paint a dire scenario in their latest filings with the court, saying the matter involves “urgent issues of national importance.” Catholic Social Services says Philadelphia “offers pro forma arguments, claiming imaginary factual disputes and simply ignoring the precedents that make up the splits on both free exercise and free speech.”
Further, the charity’s filings allege, Philadelphia continues to “exclude Catholic Social Services from foster care while avoiding judicial scrutiny.”
This is an excellent case to revisit Employment Division v. Smith, the charity’s filing asserts, adding: “The Court has known for years that this issue would arise.”
Dozens of organizations already have filed briefs with the court taking one side or the other in this closely watched case.
An amicus brief filed with the Supreme Court by the BJC, along with representatives of Lutheran, Episcopal and United Church of Christ churches, agrees that the Employment Division ruling produced bad law but says the current case is not the right vehicle to open that box and do more damage. And the brief takes the side of Philadelphia, praising its attempt at nondiscrimination.
This case should be decided easily on the court’s long history of balancing free exercise of religion with the establishment of religion, the BJC brief says.
“Hard cases can arise when a government’s important interests must be balanced against substantial burdens on religious exercise. This is not such a case,” the brief continues. Here, the city’s nondiscrimination policy reflects not only a valid and compelling interest, but one that advances religious liberty, rather than infringes upon it.
“A prospective foster parent that is rejected for being Baptist, or for being in a same-sex marriage, or another protected characteristic, is likewise a victim of discrimination.”
“A prospective foster parent that is rejected for being Baptist, or for being in a same-sex marriage, or another protected characteristic, is likewise a victim of discrimination, whether or not some other agency is willing to consider them.”
And this is not a sufficient burden on the faith-based agency to require action, the brief says. “The recipient of the government funding … does not give up their right to speak on contrary views — or, as here, to maintain and exercise their religious views — only the right to speak or act on those views through the particular project funded by the government.”
BJC General Counsel Holly Hollman added: “By requiring that government-funded foster care agencies consider all qualified individuals, the city is ensuring that all communities — including religious communities — are treated with equality and dignity. This policy also protects the viability of government partnerships with religious organizations that serve people in need. The government has an obligation to ensure that children who need foster care can be placed in safe homes.”
Mothers denied care offer testimony
Americans United for the Separation of Church and State also has weighed in on the side of the city in this case. In its own brief, AU tells the stories of six women who hoped to help care for children in need elsewhere in the country but were denied access “because they couldn’t pass the religious litmus tests of the agencies hired by the government to find homes for those children.”
One of those women, Aimee Maddonna, sought to help foster children through Miracle Hill Ministries in Simpsonville, S.C., but was turned down because she is Catholic. Miracle Hill only works with evangelical Protestants as foster parents.
“It was demoralizing to hear that we are not good enough because we aren’t the right kind of Christians,” Maddonna says in the brief. “It was difficult for my family, of course, but at the end of the day my kids still have parents. These foster children need and deserve to have someone looking out for them, and the government is taking that away. … They don’t have moms at their football games, or Sunday night dinners around the table. These children are still in an institution. That isn’t right, it isn’t fair, and it isn’t necessary.”
Likewise, Fatma Marouf and Bryn Esplin, a married, same-sex couple from Fort Worth, Texas, were denied foster care opportunities by Catholic Charities Fort Worth, which provides foster care on behalf of the government for unaccompanied refugee children. The Catholic agency said that as a same-sex couple, Marouf and Esplin didn’t “mirror the holy family.”
Americans United Legal Director Richard B. Katskee said of the brief and the case: “When it comes to balancing the welfare of children in need of loving homes with the interests of government contractors paid to work with the foster parents who will provide those homes, there is no contest. The Supreme Court should affirm that the Constitution’s promise of religious freedom does not confer a right to harm others. Religious freedom is a fundamental American value. So is protecting vulnerable children. One should not come at the expense of the other.”