Fostering conflict

After a judge ruled against two religious foster care agencies in Philadelphia, one is fighting the mandate to place children with same-sex couples and the other appears to have given in.

Catholic Social Services of Philadelphia (CSS) filed an emergency motion Monday with the 3rd U.S. Circuit Court of Appeals asking for a preliminary injunction that would reinstate the adoption and foster care charity as a contractor with the city. Bethany Christian Services, like CSS, had its contract revoked in March after officials with Philadelphia’s Department of Human Services (DHS) discovered the agencies would not place children with same-sex married couples because of the organizations’ Biblical beliefs about marriage. CSS sued, claiming religious discrimination, and asked the court to restore its contract. Bethany did not join the lawsuit, and in late June the agency agreed to work with same-sex couples.

“Bethany Christian Services has represented that it will enter into a new contract with the [Department of Human Services] for the coming year and comply with the fair practices requirements under its contract,” U.S. District Judge Petrese Tucker said Friday in her ruling denying CSS a preliminary injunction against the city.

I asked Bethany spokeswoman Morgan Greenberg why the organization was abandoning its previous policy, which was based on a Biblical understanding of marriage. Greenberg responded: “Bethany is committed to following Jesus’ call to love and protect vulnerable children and families; therefore, it remains important that Christians lead in providing high-quality social services. We are also continuing support for legislative efforts that protect our right to serve in a manner that is consistent with our beliefs.”

Greenberg said Bethany, a national organization, would comply with the law in all the cities it serves.

CSS continues in its legal battle, which started in 2004, when Massachusetts recognized same-sex marriage and refused to allow a religious exemption, forcing the agency to close its location in Boston.

“Absent an injunction ordering [the city of Philadelphia] to maintain the status quo that has prevailed for 50 years, Catholic’s foster care program will close within months, harming foster children and families,” attorneys with Becket said in the appeal.

Tucker lamented that the parties did not choose mediation over a court fight. Yet her ruling dismissed all claims of religious discrimination and free exercise and free speech violations that CSS would have brought to mediation with city attorneys and the American Civil Liberties Union, the lead organization working to close Christian foster and adoption agencies that contract with local governments.

CSS foster parents testified during a three-day hearing in June they would be devastated if they could no longer work with the agency. But Tucker’s ruling gave little consideration to the plaintiffs’ commitment to Biblical convictions about marriage and family, treating all foster and adoption agencies as interchangeable.

She trivialized the desires of foster and adoptive parents to work exclusively with like-minded agencies such as CSS and said, “Plaintiffs are, as they always have been, entitled to be foster parents with any of the 30 foster care agencies with whom DHS has contracted.”

The same holds true for the lesbian couple who reported Bethany’s policy to the Philadelphia Inquirer. Once DHS Commissioner Cynthia Figueroa became aware that two city contractors did not—and had never in their decadeslong service to Philadelphia—place children with same-sex couples, she halted all new intake referrals to CSS and Bethany. CSS had contracted with the city for 50 years and Bethany for almost 20. The city added “sexual orientation” to its nondiscrimination policy, which contractors must honor, in 1982.

Despite the apparent oversight by all parties, Tucker concluded that by signing the service contract, Bethany and CSS, as contractors providing a “public accommodation,” agreed to comply with the ordinance.

Lori Windham, a Becket attorney, disputed the judge’s conclusion.

“Foster care has never been considered a public accommodation in the 50 years that Catholic [Social Services] has worked with the city of Philadelphia,” Windham told me. “The city’s officials couldn’t think of a time that it had been treated that way—until they decided to target Catholic because of its religious beliefs.”

Tucker argued the city’s ordinance is neutral toward religion because it does not target or intentionally discriminate against religious persons or entities. But Philadelphia’s “neutral” law may neutralize two more religious child welfare agencies either by closure or capitulation.

Adoption under fire

A federal court in Detroit heard oral arguments Thursday in a case that threatens the religious freedom of foster and adoption agencies in Michigan. The American Civil Liberties Union in December 2017 sued the state to stop it from working with agencies that refused to place children with same-sex couples because of their Biblical beliefs about marriage. The legal group Becket filed a motion to dismiss the case on behalf of St. Vincent Catholic Charities and several foster and adoptive families.

“St. Vincent rescues children from the most vulnerable, most disadvantaged backgrounds like mine and gives them a chance to be part of a loving family and have a normal, healthy, happy childhood,” said Shamber Flore, a former foster child. “We can’t let the ACLU take that away.”

A 2015 Michigan law allows institutions to refuse placing children with same-sex couples based on “sincerely held religious beliefs contained in a written policy.” The ACLU claims this law protects discrimination.

Both parties in the lawsuit agree the state should not allow anything that would hinder adoptions, but they disagree on how St. Vincent fits into the equation.

“The ACLU is trying to punish St. Vincent because of its beliefs, but the only casualties from its needless lawsuit are the kids,” said Stephanie Barclay, a lawyer with Becket. “Shutting down one of the most effective adoption agencies in the city helps no one and instead hurts thousands of vulnerable children.”

This case is one of many involving religious-affiliated adoption agencies across the United States. The court will decide the Michigan case in August. —Charissa Crotts

Oregon bakers appeal to Supreme Court

The Oregon Supreme Court late last month refused to hear the case of Christian bakers Aaron and Melissa Klein, who were fined $135,000 for standing up for their Biblical beliefs about marriage. Now the Kleins are appealing their case to the U.S. Supreme Court.

“No one in America should be forced by the government to choose between their faith and their livelihood,” said Jeremy Dys, deputy general counsel for First Liberty and the couple’s attorney.

In January 2013, a lesbian couple requested a specially designed wedding cake from Sweetcakes by Melissa in Gresham, Ore., co-owned by the Kleins. They refused the request on the basis of their Christian convictions about marriage. While they said they were happy to sell cakes to anyone, regardless of sexual orientation, they did not want to help celebrate a same-sex wedding.

The customers filed a complaint with the Oregon Bureau of Labor and Industries, which fined Sweetcakes By Melissa for discrimination. The Kleins challenged the ruling.

In December 2017, the Oregon Court of Appeals ruled against the Kleins, and on June 21, the Oregon Supreme Court refused to review the case.

Dys said he hopes the U.S. Supreme Court will see the similarity between the Kleins’ case and Masterpiece Cakeshop v. Colorado Civil Rights Commission. In the high court’s June 4 decision in Masterpiece, the majority ruled the Colorado government could not force baker Jack Phillips to celebrate a same-sex wedding by creating a cake for a homosexual couple.

“Tolerance is essential in free society,” wrote Justice Anthony Kennedy in the Masterpiece decision, “and tolerance is most meaningful when it’s mutual.” —C.C.