Supreme Court to weigh ban on foster agencies that don't work with LGBT couples 

By Samuel Smith, Deputy Managing Editor Monday, February 24, 2020

The U.S. Supreme Court announced Monday that it will hear a case that could have huge implications on the rights of Christian and other faith-based adoption and foster care agencies to turn away LGBT couples on grounds of religious beliefs. 

The country’s high court will hear the case brought on behalf of a Catholic foster care parents who sued the city of Philadelphia for no longer placing children with Catholic Social Services because the organization does not place children in the homes of lesbian or gay couples. 

The case of Fulton v. Philadelphia dates back to 2018 when city officials moved to stop the placement of children in homes of foster parents affiliated with CSS of the Archdiocese of Philadelphia and Bethany Christian Services of Greater Delaware Valley. 

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Both organizations prohibited the placement of children with same-sex couples and the city argued that it wanted to prevent discrimination against the LGBT community. 

While Bethany Christian Services eventually agreed to change policy to continue working with the city, foster parents and others who’ve worked with CSS filed a legal challenge to the city’s move on grounds that it violates the First Amendment of the U.S. Constitution.

Plaintiff Sharronell Fulton had fostered as many as 40 kids during her 25 years of working with Catholic Social Services. Fellow plaintiff Toni Simms-Busch is a former social worker who adopted her foster children through CSS.

According to Becket, CSS was the “most successful” foster care agency in the city. The city stopped partnering with the organization at a time when the city admitted there was an “urgent” need for as many as 300 new foster families with over 6,000 kids in the system.

The plaintiffs were defeated in both the federal district court and federal appeals court. The Third U.S. Circuit Court of Appeals ruled in favor of the city last April.

In its ruling, the Third Circuit contended that the First Amendment “does not prohibit government regulation of religiously motivated conduct so long as that regulation is not a veiled attempt to suppress disfavored religious beliefs.” The court also rejected the argument that city officials acted out of anti-religious bias. 

CSS had argued that city officials displayed an anti-religious and anti-Catholic bias during a meeting between city leaders and leaders from CSS in 2018. 

But the court reasoned that the city made “good faith in its effort to enforce its laws against discrimination.”

Lori Windham, a senior counsel at Becket, said that she is relieved to hear that the Supreme Court will weigh in on faith-based adoption and foster care.

“Over the last few years, agencies have been closing their doors across the country, and all the while children are pouring into the system,” Windham said.  “We are confident that the Court will realize that the best solution is the one that has worked in Philadelphia for a century — all hands on deck for foster kids.”

In a statement, Simms-Busch said she is thankful the court will “sort out the mess that Philadelphia has created for so many vulnerable foster children.”

“CSS has been a godsend to my family and so many like ours,” Simms-Busch explained. “I don’t think I could have gone through this process without an agency that shares my core beliefs and cares for my children accordingly.”

Nationally, a number of municipalities and states have barred foster and adoption agencies from refusing to place children with same-sex couples. Last year, Michigan banned organizations that contract with the state from refusing same-sex couples.

Faith-based adoption and foster care agencies in states like Massachusetts, California, Illinois and the District of Columbia have halted their adoption services because of such rules. 

Grazie Pozo Christie, a policy adviser for The Catholic Association, said in a statement that she expects that the Supreme Court will "will protect the rights of Americans who are motivated by their faith to help children."

"[G]overnment should let good people do good things, and not make violating their beliefs the price of doing indispensable work," Christie stressed. 

The Supreme Court will hear at least three other religious freedom-related cases this year. 

One of them involves a Christian-owned funeral homeowner in Michigan who faced action from the Equal Employment Opportunity Commission for firing a transgender employee for refusing to wear clothing that corresponds with the employee’s birth sex. 

In March 2018, the Sixth Court of Appeals ruled against the funeral homeowner, Tom Rost of R.G. & G.R. Harris Funeral Homes. 

The Supreme Court will also hear the cases of Bostock v. Clayton County and Altitude Express v. Zarda, both of which deal with sexual orientation discrimination. 

“If the Supreme Court expands the scope of Title VII and agrees that discriminating based on sexual orientation or gender identity is an illegal form of sex discrimination, all of a sudden, all these religious organizations will be exposed to new lawsuits and potentially massive liability,” Becket’s Luke Goodrich warned on a conference call with reporters last September. 

“This applies to churches, religious schools, religious social service providers, basically, any religious organization that expects its employees to follow their religious standards of conduct could face new liability.”

Windham explained on that conference call that the Supreme Court is also weighing whether to hear the case of Christian florist Barronelle Stutzman who was fined by the state of Washington for refusing to make a floral arrangement for the same-sex wedding of one of her long-time customers.