Supreme Court To Hear First Amendment Dispute Over Same-Sex Foster Parents

The Supreme Court has agreed to take up a First Amendment dispute between the city of Philadelphia and a Catholic foster care agency excluded from the city's foster care system because it does not allow same-sex couples to serve as foster parents.

The dispute arose after the Philadelphia Inquirer published an article in 2018 about Catholic Social Services, the agency at the center of the dispute, regarding its policy not to place foster children with same-sex couples because of its religious beliefs about marriage.

Catholic Social Services is one of 30 foster agencies that contracts with the city of Philadelphia. But after the article was published, the city stopped making foster care referrals to the agency, saying at the time the agency violated an anti-discrimination ordinance and warning it would not renew its contract with the foster agency unless it changed its practices. The contract has since expired.

In response to the freeze, Catholic Social Services and three foster parents, one of whom has since died, sued the city, arguing the move violated their First Amendment rights. Catholic Social Services asked the lower courts to block the move by the city, but the federal district court refused. The 3rd U.S. Circuit Court of Appeals also ruled against the foster care agency.

In its July 2019 petition with the Supreme Court, Catholic Social Services warned that its services are being shuttered by the city because the two have opposing views on marriage. 

"It's no mystery why Philadelphia has punished CSS," lawyers for the foster care agency and the two remaining parents wrote. "Having worked in harmony with CSS for decades, Philadelphia is shutting down CSS because, it said, it wants to prohibit 'discrimination that occurs under the guise of religious freedom.' But well aware that it can't target religious exercise, Philadelphia started looking for a rationale to justify this predetermined result."

Catholic Social Services also said Supreme Court intervention is needed because faith-based foster care and adoption agencies have been forced to shutter nationwide.

"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," the petitioners' attorneys wrote. "These questions 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."

But the city rejected the allegation it acted with "religious hostility" toward Catholic Social Services.

"The city respects and values CSS's religious freedom, and its rights to hold whatever beliefs it holds about same-sex marriage," lawyers for the city wrote in a filing with the Supreme Court in October. "But the city is lawfully permitted to include nondiscrimination requirements in its city-funded contracts for city services, and it did so here for legitimate secular reasons."

The city also argued that the foster care agency does not have a "preexisting right to determine the fact of Philadelphia's abused and neglected children, whose care is entrusted by law to the government — even if doing so is consistent with or steeped in its religious ministry."

"The care of abused and neglected children in Pennsylvania is a public function. If CSS wishes to voluntarily contract with the city to assist in the discharge of that public function, the city does not burden CSS's First Amendment rights by requiring it to comply with key requirements bearing directly and exclusively on the administration of the city's programs—including the city's rules for who receives these taxpayer-funded public services," they wrote.

The Supreme Court will likely hear the case in its next term, which begins in October.

First published on February 24, 2020 / 11:17 AM

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