Supreme Court Unanimously Upholds Religious Freedom For Foster Parents

(OPINION) On Thursday, June 17, 2021, the Supreme Court of the United States, in Fulton v. City of Philadelphia, unanimously upheld the religious freedom of foster parents Sharonell Fulton and Toni Simms-Busch, advancing their ability to continue partnering with Catholic Social Services (CSS) to provide loving homes and families for vulnerable children.

“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, stated named plaintiff and foster parent Sharonell Fulton. “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.”

How this Case Unfolded

Philadelphia’s foster care system serves children through partnerships between the local government and community-based nonprofits - both secular and faith-based child placement agencies. Each year, Philadelphia contracts with dozens of foster care agencies to certify potential foster families and place children with qualified families. As the Court noted, Catholic Social Services has served vulnerable and orphaned children in Philadelphia since 1798, and has partnered with the city through a contract to administer foster care services for over half a century. 

This Catholic ministry’s mission to serve children cannot, they believe, be severed from the ancient, sacred precepts of the Catholic church regarding what family structures, relationships and sexual ethics promote human flourishing. As the Court stated: “The religious views of CSS inform its work in this system. CSS  believes  that  ‘marriage  is  a  sacred  bond  between  a man and a woman.’” CSS believes that certification of potential foster families to be a religious affirmation of their relationships. The Catholic agency is unable, because of its sincerely held religious beliefs, to certify unmarried couples and same-sex married couples. The Court also noted that CSS does not oppose certifying single individuals as foster parents, regardless of their sexual orientation. Further, according to the Court: “No same-sex couple has ever sought certification from CSS.  If one did, CSS would direct the couple to one of the more than 20 other agencies in the City,  all  of  which  currently  certify  same-sex  couples.”

This case started with a 2018 complaint against the city of Philadelphia, which cited both Catholic Social Services (CSS) and Bethany Christian Services as foster care agencies that excluded same-sex couples as foster parents. According to The Hill: “In response, Philadelphia said it would no longer refer children in the city's care to these agencies unless they complied with the nondiscrimination requirements in their contracts.” On April 22, 2019, the Third Circuit Appeals Court denied CSS’s petition to protect its freedom to serve foster children according to its religious beliefs while litigation unfolded. In July 2019, Becket, representing CSS and foster mothers, sought redress from the Supreme Court, asking them to take up the case.  In February of 2020, the Supreme Court agreed to hear the case, with oral arguments taking place on November 4, 2020. 

The Court’s decision affirms that “CSS has ‘long been a point of light in the City’s foster-care system.’” Further, the Court’s unanimous decision makes clear that this Catholic ministry is only requesting an accommodation that will permit it to remain free to serve based upon its sacred precepts- “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 Court concludes that Philadelphia’s denial of CSS’ ability to contract with the city unless it abandons its sincerely held religious beliefs   “cannot  survive  strict  scrutiny,  and  violates the First Amendment.”

Racial Equity Considerations

Although extra-legal and not directly impacting the constitutional grounds upon which the Supreme Court decided Fulton v. City of Philadelphia, this case does have potential implications for BIPOC led and BIPOC-serving faith-based social services organizations. Almost three-quarters of the children served through Catholic Social Services’ foster care ministry are children of color. In addition, many foster parents who have partnered with CSS for years to provide loving families for vulnerable children in the community are families of color. One such foster mother, Toni Simms-Busch, a named plaintiff, shared: “Our foster care ministry in Philadelphia is vital to solving the foster care crisis and Catholic Social Services is a cornerstone of that ministry. The Supreme Court’s decision ensure the most vulnerable children in the City of Brotherly Love have every opportunity to find loving homes.”

 Jacqueline C. Rivers, PhD and Executive Director of the Seymour Institute for Black Church and Policy Studies, further reiterated the connection between religious freedom and racial equity: "Our country is celebrating a victory over racial injustice in Minneapolis even as we reckon with consequences of structural racism. Part of this reckoning ought to include support for the community organizations that help struggling black families. Catholic Social Services is an example of an organization that is directly lifting up black children and black families. Today's Supreme Court victory is their victory.”

LGBT Equity Considerations

While the Court’s decision sustains the significant role of faith-affirming child welfare organizations, this decision raises concerns and ambiguities regarding the protection of LGBT communities. As the Center for Public Justice (CPJ) noted in their statement regarding this SCOTUS decision, “Important issues remain, including uncertainties for LGBT citizens seeking to foster or adopt.” While CPJ underscores their decades-long commitment to advancing freedom to serve for faith-based providers, their statement makes clear that “Congress still needs to act to resolve the many uncertainties that exist at the intersection of religious freedom and LGBT rights by passing the Fairness for All Act (H.R. 1440)...The judicial system cannot provide the blanket protections that would help resolve these issues. The Supreme Court’s decision is the perfect moment for Congress to take up its legislative task and to adopt the Fairness for All Act.” 

 Fairness for All legislation provides a way forward to protect both LGBT civil rights and religious freedom at the same time. In lieu of passing Fairness for All, Congress, according to CPJ,  could consider amending the Equality Act (S.393) “ to provide the needed federal civil rights protections for LGBT individuals while still preserving the religious freedoms enshrined in the First Amendment.” 

Considerations for Minority Religious Communities

In a recent opinion article for Newseek Rabbi Yaakov Menken, Managing Director of Coalition for Jewish Values, wrote that the Fulton decision would have an impact, specifically on minority faith communities. Written the day before the decision was announced, Menken stated: “Although the Fulton case specifically involves the Catholic Church, freedom of religious practice for all is at stake. If Philadelphia gets its way, the Court will have handed governments a legal tool to use against minority religious communities.”   

Menken further commented: “For the Jewish community, foster care and adoption are deeply connected with our most basic beliefs. We regard it as a religious obligation to place Jewish children in Jewish homes, where they will receive a Jewish education and participate in our observances. Were it to be deemed "discriminatory"...for CSS to [serve based on its faith]—our own religious obligation to place a Jewish child with a Jewish family could likewise be infringed.”

In addition, a group of theologically conservative multi-faith scholars, including Byron Johnson, Stephen Cranney, Shaykh Mohammed Amin Kholwadia, Abdullah bin Hamid Ali, Ahmed Soboh, recently wrote for Deseret News: “The claim that LGBTQ children are harmed by faith-based agencies is particularly pernicious. These claims are largely based on speculation and prejudiced stereotypes about the treatment of sexual minorities by traditional-minded Christians, Muslims, Jews and people of other faiths. The idea that opposition to same-sex Nikah, or Muslim marriage, for example (which most Muslims worldwide probably hold), will lead to mistreatment of LGBTQ children stems from a prejudiced misunderstanding of the religious ethic that drives religious foster parenting.”

Conclusion

Faith-based foster care services are one essential element to providing children with loving families in a system where too many children languish. As recent research indicates, there are high turnover and recidivism rates among foster parents, yet more than 80% of foster parents cite faith or church support as an element that contributes to successful and sustained fostering. As the unanimous Court stated in Fulton, “[t]he 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.”

Chelsea Langston Bombino is a believer in sacred communities, a wife, and a mother. She serves as a program officer with the Fetzer Institute and a fellow with the Center for Public Justice.