In New Supreme Court Case, Religious Liberty Is at Stake

The Supreme Court’s ruling in this case will not only
determine whether Catholic Social Services can
serve the children of Philadelphia, but will also
affect religious freedom nationwide in key ways. 

by Kassie Dulin: In recent years, local and state governments have forced numerous faith-based adoption and foster care agencies out of business because of their religious beliefs about marriage. While some of those agencies closed with little protest, Catholic Social Services chose to fight back in the courts.

Catholic Social Services filed a lawsuit alleging that the city of Philadelphia discriminated against the agency by refusing to place children with the agency because of its beliefs.

On Monday—after two years of legal battles — the Supreme Court agreed to hear Catholic Social Services’ case later this year. The outcome will not only affect the future of faith-based adoption and foster care agencies nationwide, but the religious freedom rights of all Americans.

More Than 100 Years of Service
Catholic Social Services has served the city of Philadelphia for more than 100 years, providing foster homes for children such as Wayne Thomas.

When Thomas was 5 years old, he was rushed to the hospital by ambulance. He was living with his aunt and uncle while his mom battled a drug addiction. During an explosive argument with his aunt, Thomas’ uncle threw boiling water on him. The 5-year-old was in the hospital for weeks receiving treatment for his severe burns.

After the boy was discharged from the hospital, the city of Philadelphia assigned his case to Catholic Social Services. The agency placed Thomas with Sharonell Fulton, a Catholic foster mom devoted to making her home a safe harbor for traumatized children.

Thomas stayed with Fulton for the next 14 years. He says that Fulton was like a mother to him, providing him with the safe, loving home his parents couldn’t offer. Today, at the age of 31, Thomas is thriving in a successful career—a life outcome very different from what his 11 siblings have experienced.

Fulton says Catholic Social Services’ workers have been a lifeline to her over the past 25 years as she has cared for more than 40 children. The agency even provided wrapped Christmas presents hours after Fulton welcomed four foster children into her home on Christmas Eve. Catholic Social Services’ staff became “like family” to her and her foster children.

City Forces Agency to Shut Down
Over the past century, Catholic Social Services has developed a stellar record of serving children like Thomas and foster parents such as Fulton. However, city officials forced the agency to close its doors over its religious beliefs about marriage.

City Forces Agency to Shut Down
Over the past century, Catholic Social Services has developed a stellar record of serving children like Thomas and foster parents such as Fulton. However, city officials forced the agency to close its doors over its religious beliefs about marriage.

In March 2018, a Philadelphia Inquirer reporter asked Catholic Social Services what it would do if a hypothetical same-sex couple sought to foster a child through the agency. It responded that, because of the Catholic Church’s long-held belief that children do best when raised in a home with a married mother and father, it would refer the hypothetical couple to one of the dozens of other foster care providers in the city.

When the city heard about Catholic Social Services’ response, it immediately launched an investigation into the agency’s alleged “discrimination”—even though no same-sex couple had asked to foster a child or been prevented from fostering a child.

The city then gave the agency an ultimatum: agree to certify same-sex couples as foster parents or end its foster care services. Catholic Social Services could not violate its religious beliefs, so the city ended its contract with the agency, effectively shutting down its foster care program.

As a result, dozens of Catholic Social Services foster families have been denied the ability to foster children through the agency they know and trust, even as the city faces an unprecedented foster care crisis and has put out a call for more foster families.

The agency sued the city, alleging religious discrimination. The agency lost at the federal district and appellate levels. But on Monday, the Supreme Court agreed to hear the case.

How This Case Affects All Americans
The Supreme Court’s ruling in this case will not only determine whether Catholic Social Services can serve the children of Philadelphia, but will also affect religious freedom nationwide in three key ways.

First, the outcome will determine whether governments can force faith-based adoption and foster care agencies out of business because of their religious beliefs. This is an especially important question as the United States faces a major foster care crisis due to the opioid epidemic.

A Supreme Court ruling in the faith-based agencies’ favor would ensure that they can keep their doors open to serve children in need.

Second, this case will allow the court to revisit Employment Division v. Smith, one of the most problematic religious freedom precedents in Supreme Court history. The ruling in that 1990 case gave the government considerable leeway in restricting the free exercise of religion through laws that are “neutral” or “generally applicable.”

For decades, that opinion has resulted in the restriction of Americans’ rights to freely exercise their faith. Several Supreme Court justices have expressed concern about Employment Division v. Smith, including Justices Samuel Alito, Clarence Thomas, Neil Gorsuch, and Brett Kavanaugh, and Chief Justice John Roberts.

The court could use Catholic Social Services’ case to overturn Employment Division v. Smith and reaffirm that religious freedom is a fundamental right deserving of robust legal protection.

Finally, although this case centers on the interaction between a single city and a foster care agency, it points to a bigger issue of state and local governments struggling to balance Obergefell v. Hodges’ 2015 legalization of same-sex marriage with the Constitution’s guarantee of religious liberty for all.

With Catholic Social Services’ case, the justices could clarify that the First Amendment requires the government to respect the diverse beliefs of all Americans in matters involving marriage.

The Supreme Court will hear the case, Fulton v. Philadelphia, later this year. The outcome will affect not only agencies such as Catholic Social Services and foster children such as Thomas, but religious liberty nationwide.

By revisiting the Employment Division v. Smith precedent and clarifying First Amendment rights in the same-sex marriage debate, the court’s opinion will play a crucial role in determining the religious freedom rights of all Americans.
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Kassie Dulin is a law student at Georgetown Law and the former chief communications officer of First Liberty Institute, a national religious-freedom law firm. Contributed article at The Daily Signal.

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