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Seeking accommodation

A summer of surprising Supreme Court unanimity includes a narrow ruling that could bode well for Christian foster agencies


Women celebrate a June 17 Supreme Court ruling in favor of Catholic Social Services. Jonathan Ernst/Reuters/Newscom

Seeking accommodation

When the U.S. Supreme Court began issuing a flurry of decisions ahead of its summer recess, a common thread surprised some court watchers: The nine justices often agreed unanimously.

An ABC News analysis in late June reported some 67 percent of the high court’s rulings were unanimous or near-unanimous, undercutting warnings of a bitterly divided court in need of rebalancing or expanding.

In at least one case, a unanimous decision came in particularly contentious territory: On June 17, the justices ruled 9-0 in favor of Catholic Social Services’ right to participate in Philadelphia’s foster care program while adhering to religious beliefs that constrain the group from placing children with same-sex couples.

The case—known as Fulton v. Philadelphia—grew out of a 2018 conflict between Christian foster care agencies and the city of Philadelphia. When Bethany Christian Services referred a gay couple to another agency, the city suspended its foster care contract with the evangelical organization. City officials also suspended an agreement with Catholic Social Services.

The city issued an ultimatum: If the groups wanted to continue facilitating foster care, they’d have to allow same-sex couples to apply. Bethany complied. The Catholic agency refused. A year later, officials in Michigan made a similar demand. Again, Bethany complied. A Catholic agency refused, and Catholics filed lawsuits in Michigan and Philadelphia.

Bethany didn’t join the legal action. In 2019, a Bethany official told WORLD the agency still affirmed marriage as a union between a man and a woman but had considered the probabilities of winning in court and balanced that with a desire to continue placing children in foster care.

What may have seemed improbable turned into a unanimous Supreme Court win for Catholic Social Services, but Bethany’s policy changed this spring. In March, the organization announced it would allow same-sex couples to foster and adopt in all its locations, whether local laws require it or not. Bethany officials said the organization no longer takes a position on Scripture’s teaching that marriage is an institution between a man and a woman.

What may have seemed improbable turned into a unanimous Supreme Court win for Catholic Social Services.

Since then, Bethany voluntarily resigned from the Evangelical Council for Financial Accountability (ECFA). ECFA President Michael Martin said the withdrawal came after his group began discussions with Bethany about how the agency’s new policy would affect its standing in the organization. (The ECFA affirms marriage as a union between a man and a woman.) A Bethany official confirmed the withdrawal. When I asked Bethany for its reaction to the Supreme Court ruling in light of its 2019 concerns about winning such cases, a Bethany spokesperson said the decision “reaffirms the importance of diverse coalitions” working together.

Meanwhile, religious liberty advocates praised the Supreme Court’s ruling for Catholic Social Services. But the victory comes with a caveat: While the justices ruled that the city violated the First Amendment rights of the Catholic agency, they focused narrowly on the details of the Fulton case, rather than issuing a ruling that could offer broader protections in the future.

Justice Samuel Alito expressed frustration. “This decision might as well be written on dissolving paper sold in magic shops,” he wrote in a concurring opinion. Justices Neil Gorsuch and Clarence Thomas shared Alito’s concerns that the city of Philadelphia could get around the court’s decision simply by rewriting its contracts.

That means more legal battles likely lie ahead. But religious liberty advocates remained hopeful about language in the decision that could bolster their arguments in the future. Chief Justice John Roberts wrote that Catholic Social Services “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.”

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