Religious Freedom Advocates Celebrate After SCOTUS Sides With Catholic Group On Gay Couple Foster Parents

Philadelphia refused to contract with a Roman Catholic adoption agency.
A child with ear-protection gear looks on during the HBTQ festival "Stockholm Pride" parade on August 6, 2011 in central Stockholm.

Religious freedom advocates celebrated after the Supreme Court on Thursday sided with a Catholic group that rejects same-sex couples as foster parents.

“In the Court’s unanimous decision, Chief Justice Roberts made clear that the city cannot exclude … Catholic Social Services simply because city officials disagree with the religious agency’s sincere Catholic beliefs about marriage,” the Becket Fund for Religious Liberty, which legally represented the Catholic group, said in a press release on the ruling in Fulton v. City of Philadelphia.

“The Justices also recognized that protecting faith-affirming agencies will ensure foster children in need have every opportunity available to find a loving home,” the Becket Fund added.

Chelsea Patterson Sobolik, policy director for the Southern Baptist Convention’s Ethics and Religious Liberty Commission, celebrated the decision as a “huge victory” for religious liberty.

“This ruling in Fulton means that children who need safe, permanent, and loving homes will be served by a foster-care system that welcomes all who are qualified to serve those in need,” she wrote on Twitter.

“9-0 Victory! The Supreme Court unanimously says that government can’t discriminate against faith-based organizations,” wrote Senator Ted Cruz (R-TX) on Twitter.

The Court ruled unanimously that Philadelphia discriminated against Catholic Social Services, which city officials had dropped from the city’s foster care program because the group refused to approve same-sex couples as foster parents.

Philadelphia refused to contract with the Roman Catholic adoption agency, citing the city’s requirement that contractors agree to treat all residents equally, including same-sex couples.

Chief Justice John Roberts wrote the opinion for the majority saying that Philadelphia violated the First Amendment rights of the religious group.

“CSS 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,” Roberts wrote.

“As an initial matter, it is plain that the City’s actions have burdened CSS’s religious exercise by putting it to the choice of curtailing its mission or approving relationships inconsistent with its beliefs,” the chief justice wrote.

Roberts noted that Philadelphia has the ability to grant exemptions from its nondiscrimination policy and said the city failed to show a compelling interest in refusing to grant such an exemption to Catholic Social Services.

“We have never suggested that the government may discriminate against religion when acting in its managerial role,” he said.

Joining Roberts in his opinion were Justices Stephen Breyer, Sonia Sotomayor, Elena Kagan, Brett Kavanaugh, and Amy Coney Barrett. Justices Clarence Thomas, Samuel Alito, and Neil Gorsuch also approved of the decision in the case but disagreed with Roberts on why.

Gorsuch criticized as flawed a 1990 case that Thursday’s decision relied upon, Employment Division v. Smith, which opened the door to allow state and local governments to prohibit discrimination in certain situations. He suggested that the majority’s narrow ruling in Thursday’s case may be the result of the justices’ reluctance to pick a side on the controversial issue.

“The particular appeal before us arises at the intersection of public accommodations laws and the First Amendment; it involves same-sex couples and the Catholic Church,” Gorsuch wrote. “Perhaps our colleagues believe today’s circuitous path will at least steer the Court around the controversial subject matter and avoid ‘picking a side.’ But refusing to give CSS the benefit of what we know to be the correct interpretation of the Constitution is picking a side.”

“These cases will keep coming until the Court musters the fortitude to supply an answer,” Gorsuch said.

Alito offered a similar critique of Robert’s reasoning.

“This decision might as well be written on the dissolving paper sold in magic shops,” Alito wrote. “The City has been adamant about pressuring CSS to give in, and if the City wants to get around today’s decision, it can simply eliminate the never-used exemption power.”

Senator Josh Hawley (R-MO) expressed his approval of the decision on Twitter but added that it was a “missed opportunity” to protect religious liberty further.

“The #SCOTUS decision in Fulton sends a clear message: government cannot discriminate against churches & religious groups on the basis of their faith. Government can’t treat secular groups better than religious ones. No discrimination!” Hawley tweeted Thursday.

“But it was also a missed opportunity to overrule Smith. The Smith decision was wrong the day it was decided and should be overruled,” the Missouri Republican added.

In 2019, the 3rd U.S. Circuit Court of Appeals in Philadelphia decided against Catholic Social Services, ruling that the city did not target the Archdiocese of Philadelphia’s agency.

Attorneys for Catholic Social Services said at the time that Philadelphia’s decision to boot the adoption service from the city’s program had stopped dozens of families who were looking to adopt from being able to do so for close a year.

“We’re disappointed that the court decided to let the city place politics above the needs of kids and the rights of parents, but we will continue this fight,” Becket Senior Counsel Lori Windham said.

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