U.S. Supreme Court Backs Catholic Group on Foster Parents

WASHINGTON (Reuters/Hamodia) —
Philadelphia City Hall. (Reuters/Rachel Wisniewski/File Photo)

The U.S. Supreme Court embraced religious rights on Thursday by ruling in favor of a Catholic Church-affiliated agency that sued after Philadelphia refused to place children for foster care with the organization because it barred some couples from applying to become foster parents on religious grounds.

The 9-0 ruling, written by conservative Chief Justice John Roberts, was a victory for Catholic Social Services (CSS), part of the Archdiocese of Philadelphia, and represented the latest instance of the Supreme Court taking an expansive view of religious rights under the U.S. Constitution.

The justices decided that Philadelphia’s refusal to use Catholic Social Services for foster care services unless it agreed to those couples as foster parents violated the Constitution’s First Amendment guarantee of the free exercise of religion.

Catholic Social Services argued that Philadelphia had penalized it for its religious views and for following church teachings.

In the ruling, Roberts wrote, “CSS seeks only an accommodation that will allow it to continue serving the children of Philadelphia in a manner consistent with its religious beliefs; it does not seek to impose those beliefs on anyone else.”

Conservative and religious advocacy rights groups cheered the decision – and the fact that the court’s three liberal members joined the six conservative justices – saying it will have a major impact on future legal disputes involving religious beliefs.

“This is a strong ruling in favor of religious freedom, especially for social services providers,” said Lori Windham, a lawyer for the Becket Fund for Religious Liberty, which represented the agency and three foster parents in the case. “The court recognized that it is not the government’s place to exclude religious agencies because of their religious beliefs.”

“I am grateful that we can finally rest knowing that the agency that has brought my family together can continue to do the same for other families,” said Toni Lynn Simms-Bush, who has served as a foster parent through Catholic Social Services and was one of the plaintiffs.


The justices decided that foster care certification provided by Catholic Social Services did not fall under the city’s anti-discrimination ordinance because it is a service not “readily available” to the public.

“It involves a customized and selective assessment that bears little resemblance to staying in a hotel, eating at a restaurant or riding a bus,” Roberts wrote.

The Supreme Court declined to take even-broader action in the form of overruling its 1990 precedent that upheld “generally applicable” laws even if they curb religious freedom. Conservative Justices Samuel Alito, Clarence Thomas and Neil Gorsuch said the court should have overruled that precedent.

Liberal advocacy groups called the ruling troubling but said they were relieved it did not go further.

Catholic Social Services, which has helped provide foster care services for more than a century, had said it would be compelled to close its foster care operations if it was barred from Philadelphia’s program.

Philadelphia in 2018 suspended foster care referrals to Catholic Social Services after a newspaper report about the organization’s policy against some couples as foster parents on religious grounds, leading the agency to file suit. Catholic Social Services said Philadelphia’s action meant that available foster homes were sitting empty amid a foster care crisis in the city of about 1.5 million people.

The Philadelphia-based 3rd U.S. Circuit Court of Appeals in 2019 ruled against Catholic Social Services, saying it had not shown that the city had treated it differently because of its religious affiliation. U.S. District Judge Petrese Tucker in 2018 also ruled against the organization.

The Supreme Court in recent years has sent mixed messages on the conflict between individual rights and religious rights.


The National Jewish Commission on Law and Public Affairs (“COLPA”) submitted an amicus brief authored by noted Washington attorney Nathan Lewin on behalf of several Jewish organization, including Agudath Israel of America, the Agudas Harabbonim, the National Council of Young Israel, the Orthodox Jewish Chamber of Commerce, the Rabbinical Alliance of America, the Rabbinical Council of America, and Torah Umesorah.

The brief called upon the Supreme Court to overrule its decision in Employment Division v. Smith in which the Supreme Court said that if a law is not directed specifically against religious practice it is not unconstitutional, as long as it is “neutral and of general applicability” even though it does actually restrict freedom of religion. Ever since it was issued, that decision has curtailed religious freedom in numerous cases.

Justices Alito and Gorsuch sharply attacked the decision of the majority Justices who declined to overturn the Smith decision. Justices Alito and Gorsuch concurred with the majority that it was a violation of the Free Exercise Clause, but both wrote that the Court should have overturned the Smith decision, and Justice Thomas joined in their concurring opinions.

Overturning the Smith decision has important ramifications for the Orthodox Jewish community, Agudath Israel of America said. As Justice Alito pointed out in his opinion, under Smith, a law that prohibited the slaughter of animals unless they are first rendered unconscious would be constitutional, even though it would have the effect of banning kosher slaughter in the United States. Similarly, a law banning circumcision would be constitutional, even though it would outlaw bris milah.

Rabbi Chaim Dovid Zwiebel, executive vice president of Agudath Israel of America, stated, “We are gratified that the Court has ruled that the City of Philadelphia violated CSS’s Free Exercise rights.” He continued, “But we are disappointed that the Court did not use this opportunity to overturn Employment Division v. Smith. We can only hope that soon the Court will revisit Smith, which has had a detrimental impact on religious freedom in America.”

“Today’s historic ruling by the U.S. Supreme Court is of critical important to the American Orthodox Jewish community,” said Nathan Diament, Orthodox Union Executive Director for Public Policy. “As a minority faith community in the United States, the robust legal protection for religious practice is an existential issue for us. Today’s ruling in Fulton reinstates that robust protection at the constitutional level and thus more potently promises that Jews — along with Americans of all faiths — will have our religious practices protected from government interference.”

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