Free to serve children?

Toni Simms-Busch, one of the foster mothers suing in Fulton v. City of Philadelphia, recalls the moment she heard the city was attempting to shut down Catholic Social Services. She said she “felt like she had been kicked in the stomach.”

“Catholic Social Services saved the lives of my children,” she said.

As many bleary-eyed election watchers were just waking up on Wednesday, the Supreme Court heard arguments in a religious liberty case that could have widespread implications for faith-based groups with Biblical understandings of marriage. Catholic Social Services has placed foster children in Philadelphia for more than 200 years. But the city barred the agency from participating in its foster care program after officials discovered it referred same-sex couples to other organizations. Officials told Catholic Social Services it either had to change its practice or close down. When the agency and some of its foster parents sued, both a federal district court and appeals court upheld the city’s bar.

But a majority of the high court’s justices seemed eager to find a way to accommodate Catholic Social Service’s religious liberty interest. Justice Samuel Alito was most direct in his critique of the city. “If we are honest about what’s really going on here, it’s not about ensuring that same-sex couples in Philadelphia have the opportunity to be foster parents,” said Alito. “It’s the fact the City can’t stand the message that Catholic Social Services and the Archdiocese are sending by continuing to adhere to the old-fashioned view about marriage.”

Alito also zeroed in on the lack of evidence that any same-sex couple had ever tried and failed to foster through the agency. Justice Stephen Breyer also said that was “bothering me a lot.” Justice Brett Kavanaugh stressed the need to carefully balance free exercise of religion and same-sex marriage rights and said Philadelphia unnecessarily “created this clash.”

“What I fear here,” Kavanaugh said, “is that the absolutist and extreme position would require us to go back on the promise of respect for religious believers.”

While the justices seem to be searching for a way to dispose of the case on narrow grounds, Becket counsel Lori Windham argued for the clarity of a broader ruling. She said the court should overrule or limit its 1990 decision in Employment Division v. Smith—an opinion that has drawn severe criticism from legal commentators.

In Smith, the court ruled that a government can substantially burden free exercise of religion to enforce a neutral, generally applicable law with a reasonable basis. Windham argued courts should instead apply strict scrutiny and require the government to show compelling interest when a liberty is at stake, as they did before Smith. In this case, Philadelphia had no compelling interest because numerous other agencies serve same-sex couples, Windham said.

The court’s newest member, Justice Amy Coney Barrett, followed on a question from liberal Justice Sonia Sotomayor and asked Windham about how that standard would apply if the agency had religious beliefs against placing children with interracial couples. Windham pointed to the court’s long history of finding that eradicating racial discrimination was a uniquely compelling interest.

As significant as the decision will be for Philadelphia’s children, the agency and foster parents’ case has broader implications. A court in Michigan is waiting to see what the Supreme Court decides in Fulton before ruling on a similar case involving St. Vincent Catholic Charities. Some faith-based agencies, like Bethany Christian Services, have already folded to nondiscrimination rules and agreed to serve same-sex couples. Others have quietly gone out of the business.

James Amato, executive vice president of Catholic Social Services, said the case could affect more than 8,000 religious foster care agencies. He argued they need the freedom to follow their religious convictions without governmental harassment. Windham agreed.

“Religious organizations should be free to serve the public, regardless of their beliefs,” she said. “The public square is big enough to accommodate everyone who wishes to do good—and that should be especially true when it comes to taking care of children in need.”