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In foster care case, another religious liberty test looms before the Supreme Court

Sharonell Fulton, a foster parent in Philadelphia, is pictured with a young woman and child in a May 23, 2018, photo. The U.S. Supreme Court announced Feb. 24, 2020, that in its next term it will examine if the city of Philadelphia can exclude a Catholic social services agency from the city's foster care program because the agency will not accept same-sex couples as foster parents. The case is Fulton v. Philadelphia. (CNS photo/courtesy Becket Religious Liberty for All)


Does the Catholic Church have a right to act in the public square according to its convictions about sexual morality without being penalized by the state? That important question, once far-fetched but now no longer so, was left unanswered by the Supreme Court’s June 15 decision making “gay” and “transgender” specially protected categories in federal job discrimination law.

Now, it seems, the court will begin the process of answering the question in a matter of months.

In the term that begins in October, the justices will hear a case called Fulton v. Philadelphia in which the Archdiocese of Philadelphia is challenging the city’s action forcing Catholic Social Services out of the local foster care program because the Catholic agency won’t place children with same-sex couples.

The case does not raise identically the same issues as those involved in the Supreme Court’s recent LGBTQ decision on job discrimination (Bostock v. Georgia). But the clash of interests involved here was foreseen by Justice Neil Gorsuch in a section of his Bostock majority opinion. Conflicts between religious liberty and LGBTQ claims, he remarked, raise “questions for future cases” that the Supreme Court would eventually have to decide.

The heart of these conflicts is already clear in the Fulton case. Catholic Social Services, an arm of the Archdiocese of Philadelphia, has been in the foster care business since 1917, long before the city entered the field. But foster care is now controlled by the city, which contracts with private agencies to recruit foster parents and place children. In 2017-18, the Catholic agency was responsible for 120 foster kids.

At of the start of the present dispute, no same-sex couple had ever approached Catholic Social Services asking to be allowed to provide foster care. But then the Philadelphia Inquirer published a story publicizing the agency’s policy — something of which the city had previously been unaware. The city then pressured the agency to change its policy and, when that didn’t work, refused to send it children for placement, thus forcing it out of the field entirely.

Predictably, this dispute wound up in court, with the 3rd Circuit U.S. Court of Appeals ruling against the Catholic agency. It is that decision which the Supreme Court is now being asked to reverse.

There is no mystery about Catholic Social Services’ position. In asking the Supreme Court to accept the case for review, it put it like this:

“Here and in cities across the country, religious foster and adoption agencies have repeatedly been forced to close their doors, and many more are under threat. These questions [about the exercise of religious liberty] are unavoidable, they raise issues of great consequence for children and families nationwide, and the problem will only continue to grow until these questions are resolved by this court.”

Justice Gorsuch is not the only justice of the Supreme Court to manifest a certain clairvoyance in these matters. In his dissenting opinion in the 2015 Obergefell case in which the court legalized same-sex marriage, Chief Justice John Roberts predicted that some such dispute as this, involving a religious adoption agency, would “soon be before this court.”

But that was an easy call. The Philadelphia dispute is part of a larger pattern of conflict and confrontation arising from efforts — backed by the media and some politicians — to advance LGBTQ interests in an ever-widening circle of settings. Obergefell set the machinery in motion. Then came last month’s Bostock decision. Will a Catholic agency’s foster care program be next? And if so, what comes after that?

Russell Shaw is a contributing editor for Our Sunday Visitor.

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