Supreme Court to Hear Religious Liberty Case on Foster Care

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U.S. Supreme Court Building. (Kjetil Ree)

The Supreme Court has agreed to weigh in on whether state and local governments can ban faith groups from providing adoption and foster services, based on objections to their religious beliefs. The case, which pits the city of Philadelphia against two foster parents and a Catholic service provider, could bring clarity to an issue being deliberated in lower courts for the past few years.

In 2018, Philadelphia’s city government informed Catholic Social Services (CSS) that it would no longer refer children to its offices, citing opposition to the Church’s traditional stance on family life as the reason for the move. At the same time, the city government passed a resolution to look into practices of other faith-based social service agencies, in search of others that it saw as being in violation of its “non-discrimination” policies.

Months later, CSS filed a lawsuit together with the two foster mothers asking for a preliminary injunction to allow religious groups to continue their operations in the city, saying their exclusion had been based on bias against the tenets of their faith.

Their claims were denied by a district court and in 2019 by the Third Court of Appeals, which ruled that Philadelphia cleared the bar of religious discrimination since the policy in question was neutral and did not visibly target any given group.

On Monday, the Supreme Court announced that they would consider the case.

Lori Windham, senior counsel at Becket, a religious liberty law firm representing CSS and the mothers, expressed confidence that Justices would order the city to renew its contact with her clients.

“I’m relieved to hear that the Supreme Court will weigh in on faith-based adoption and foster care,” she said. “Over the last few years, agencies have been closing their doors across the country, and all the while children are pouring into the system. We are confident that the Court will realize that the best solution is the one that has worked in Philadelphia for a century — all hands on deck for foster kids.”

A representative for the American Civil Liberties Union (ACLU), which is acting as an intervener in support of Philadelphia’s claims, also framed the question as how children in need of homes would be best served.

“This case could have profound consequences for the more than 400,000 children in foster care across the country,” said Leslie Cooper. “We already have a severe shortage of foster families willing and able to open their hearts and homes to these children. Allowing foster care agencies to exclude qualified families based on religious requirements that have nothing to do with the ability to care for a child … would make it even worse. We can’t afford to have loving families turned away or deterred by the risk of discrimination.”

CCS and other faith groups have countered such claims saying that allowing municipalities to bar their participation in government-sponsored adoption and foster care only shrinks the pool of homes available to children in need. They also cite the fact that CSS is only one of more than a dozen organizations involved in foster and adoption placement, the majority of which are not faith-based.

“The city is looking to score political points, but if it stops working with foster-care organizations simply because of their religious beliefs, the only thing it will accomplish is fewer homes for children who need them,” said Becket in a prior statement related to the case.

Philadelphia is hardly the only example of local governments chasing faith groups out of the child placement field.

As far back as 2006, Catholic Charities of Boston, one of the nation’s oldest adoption agencies, was cut loose by Massachusetts over its refusal to sign onto a policy statement that violated the group’s beliefs. Since then, Washington DC, San Francisco, the state of Illinois, and several other states and cities have forced traditional faith-based organizations to do the same, also citing “nondiscrimination” policies as the reason for their actions.

Since these showdowns began, religious liberty advocates have argued that such policies are intended to give traditional faith groups a choice of altering their beliefs or being squeezed out of the public forum.

Plaintiffs argue that Philadelphia’s actions violate CSS’s First Amendment rights by “conditioning” their participation in foster services on a violation of their beliefs.

In addition, they are asking the court to reconsider a 1990 case which has long been a bane of many and varied religious liberty claims―and one cited in the Third Circuit’s denial of their suit.

Though authored by the late Justice Antonin Scalia, seen as a great champion of such rights, Employment Division v. Smith, established a standard by which no law could be seen as a violation of a citizen’s right to free exercise of religion as long as the statute was neutrally applied to all. In response to the decision, Congress passed the 1993 Religious Freedom Restoration Act (RFRA), which placed the burden on government to ensure that laws did not interfere with religious observance. Yet the law only applies federally, leaving local governments a freer hand.

The case will not be argued this term, and will likely be heard this coming fall.

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