The Supreme Court building in Washington.
The Supreme Court building in Washington. (Source: AP Photo/J. Scott Applewhite)

SCOTUS Rules Unanimously for Religious Rights of Foster Agency

By Yonat Shimron

A city-funded foster and adoption agency that opposes same-sex marriage on religious grounds can be exempted from serving such couples, the Supreme Court ruled on Thursday.

In a unanimous ruling, the justices once again showed they were receptive to claims by religious groups — in this case Catholic Social Services, which refuses to work with same-sex couples. The agency had contracted with the city of Philadelphia to screen potential foster parents.

Beginning in 2018, the city of Philadelphia ended its contract with CSS, claiming that the organization violated a city ordinance banning discrimination.

In Fulton v. Philadelphia, the court said Philadelphia was wrong to end a contract with the Catholic agency.

Catholic Social Services and two foster parents — one named Sharonell Fulton — sued the city, claiming the free exercise clause in the First Amendment gives the agency the right to opt out of the nondiscrimination requirement. A lower court and a federal circuit court ruled in the city’s favor, so CSS appealed to the Supreme Court. The opinion, by Chief Justice John Roberts, reversed the circuit court ruling.

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“The refusal of Philadelphia to contract with CSS for the provision of foster care services unless CSS agrees to certify same-sex couples as foster parents violates the Free Exercise Clause of the First Amendment,” the opinion states.

The court did not, however, establish a general right for religious organizations to violate nondiscrimination laws.

The court ruled more narrowly that since a section in the city’s nondiscrimination policy allowed exceptions to the nondiscrimination policy at the city commissioner’s discretion (though none has ever been granted), it must also do so for Catholic Social Services’ sincerely held religious beliefs. 

Still, the justices’ opinion was viewed as yet another victory for religious rights. A study published earlier this year found a 35 percentage-point increase in the rate of Supreme Court rulings that favor religion over the past 70 years.

In Burwell v. Hobby Lobby, the court held that the contraception mandate in the Affordable Care Act violated the rights of a corporation owned by a religious family. And in Masterpiece Cakeshop v. Colorado Civil Rights Commission, the court held that a baker’s First Amendment rights were violated by the state commission that enforced its anti-discrimination law.

Gay rights groups interpreted the latest ruling as another defeat for LGBTQ equality. A study by the Williams Institute at UCLA shows same-sex couples raising children were approximately seven times more likely than heterosexual couples raising children to have an adopted or foster child. 

Marianne Duddy-Burke, an activist with DignityUSA, an organization of Catholics committed to full inclusion of LGBTQ people, said she believes the ruling will impact foster care and adoption services and perpetuate “horrific myths” about same-sex couples.

Duddy-Burke and her partner were denied the ability to adopt through Catholic Charities in Massachusetts. The couple — both of whom are Catholic — were eventually able to adopt two children by working directly with the state.

But Douglas Laycock, a law professor at the University of Virginia and a leading scholar in the area of religious liberty, said that, as the ruling pointed out, there are more than 20 foster care agencies in Philadelphia, many catering to LGBTQ couples.

“No one is going to have any difficulty adopting or offering foster care because of this decision,” he said. “If in some rural area the Catholic or Baptist agencies are the only ones in town and same-sex couples can’t get service, maybe the state does have a compelling state interest.”

But the effect of the ruling could make it more likely government agencies will become less flexible and exclude any exceptions to laws, said Robin Fretwell Wilson, a professor of law at the University of Illinois College of Law. 

Yonat ShimronYonat Shimron is a national reporter and senior editor for Religion News Service.



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5 thoughts on “SCOTUS Rules Unanimously for Religious Rights of Foster Agency”

  1. Jeremiah Ames

    We are now in a slow crawl back into the dark ages, when our supreme ct says you may discriminate against other people because they are different than you, solely on the basis of backward and false, so called “religious” beliefs.

    I apologize upfront to those of you who are offended by my personal religious views. My excuse is this: I follow the Bible guy who hung around prostitutes and, even worse, tax collectors. He wasn’t too happy to be around religious leaders either.

    1. Suzanne Alexis

      No, SCOTUS ruled that Philadelphia can’t punish a Catholic agency for following its sincerely held religious beliefs. And that guy you follow defined marriage this way: “Male and female He created them.”

    2. Gordon Hackman

      “We are now in a slow crawl back into the dark ages…”

      That strikes me as an overly hysterical response.

      Also, “the dark ages” is largely no longer in use by scholars as a historical designation, as it’s regarded as inaccurate.

  2. By what is support for essentially the “establishment” of religion – SCOTUS encourages MORE religious oppression and theft from the American people – as we do not have enough with the whole tax deductibility of contributions to religious organizations – a clear and damnable violation of the establishment clause. God help me to tear this idol to Ba-al to the ground!!

    The reality is simple – CSS is first and foremost a BUSINESS – a creation of the state – NOT the personal practice of religion. The First Amendment is solely focused on the LATTER – and have nothing to do with the commercial enterprise operated by whoever – which is SOLELY guided by the PEOPLE.

    This is more wretched self-serving religious arrogance and deceit – and plain theft from the good people of Philadelphia.

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