SCOTUS Defends Religious Freedom in Fulton v. Philadelphia

In a unanimous decision, the U.S. Supreme Court ruled yesterday in Fulton v. City of Philadelphia that Philadelphia’s attempt to force Catholic Social Services (CSS) to certify same-sex couples as foster parents or lose its license violates the free exercise clause of the First Amendment. This decision reverses an April 2019 ruling by the U.S. Court of Appeals for the Third Circuit and remands it for further proceedings.

Chief Justice Roberts delivered the Court’s opinion concluding that “the City has burdened the religious exercise of CSS through policies that do not meet the requirement of being neutral and generally applicable.” Lacking neutrality and general applicability, the government policy must survive “strict scrutiny” (i.e. the government must show both that the government has a “compelling interest” in the policy and that it cannot achieve its compelling interest in a less restrictive way), which Philadelphia did not prove. Citing the Supreme Court’s 2018 holding in Masterpiece Cakeshop, Roberts wrote, “Government fails to act neutrally when it proceeds in a manner intolerant of religious beliefs or restricts practices because of their religious nature.”

The road to the high court began two years ago when the City of Philadelphia threatened not to renew the contracts of two faith-based foster care agencies who receive public grants, Bethany Christian Services (BCS) and Catholic Social Services (CSS), because of their policies of not licensing same-sex couples to be foster parents. The City maintained that these agencies were discriminating and failing to follow the City’s anti-discrimination laws. In the end, BCS agreed to change its policies while CSS proposed referring any same-sex “married” couples interested in fostering to one of 29 other agencies that work with the city. Philadelphia wasn’t content with this proposal and terminated their contract even though no same-sex couple had ever approached CSS.

Since that time, dozens of CSS foster families have been denied the ability to foster children through CSS – an agency they know and trust -- despite the fact that the current demand for foster parents in the U.S. is at an all-time high. It is unconscionable that the City of Philadelphia would place hundreds of children who are in need of good and loving homes in jeopardy particularly after repeatedly recognizing the severe shortage of foster families and putting out a call for an additional 300 foster families just days before ending their contract with CSS.

CSS has served all children in need regardless of race, religion, sexual traits, or any other characteristics for almost two hundred years. It’s clear to even the most unobservant person that this organization has been vital to many children and families especially since foster children who don’t find permanent families are more likely to become high school dropouts and suffer from poverty and addiction.

It’s also important to note that the City of Philadelphia never objected to the quality of services provided by CSS – in fact, as Chief Justice Roberts pointed out in his opinion, the City of Philadelphia even used the phrase “point of light” to describe CSS in relation to the other foster care agencies in Philadelphia.

Additionally, during all the years CSS had served Philadelphia, not one same-sex couple ever requested foster care certification from CSS, a fact that didn’t go unnoticed by Left-leaning Justice Stephen Breyer who said during the oral argument, “What’s actually bothering me quite a lot about this case is I think that no family has ever been turned down by this agency. Indeed, none has ever applied, no gay family, no gay couple.”

Recently, our nation has experienced some highly contentious disagreements over the tension between the fundamental right of religious freedom and other rights. It’s so important for everyone to be mindful of the rights of others to uphold their convictions, as outlined by James Madison’s claim in his highly influential “Memorial and Remonstrance Against Religious Assessments,” that the “religion of every man must be left to the conviction and conscience of every man; and it is the right of every man to exercise it as these may dictate.”

We should never take the right to religious freedom for granted, and we must understand, as Virginia’s own Constitution states (as written in 1776), “that it is the mutual duty of all to practice Christian forbearance, love, and charity towards each other” in our everyday lives. 

As President Trump rightly stated in his 2018 Religious Freedom Day proclamation, “No American — whether nun, nurse, baker, or business owner — should be forced to choose between the tenets of faith or adherence to the law.”