The draconian application of state and local sexual orientation and gender identity anti-discrimination laws is pushing out groups with successful track records in serving our nation’s neediest children. Catholic foster care and adoption organizations in the District of Columbia, Boston, San Francisco, and Illinois have shut their doors rather than violate their church’s religious teaching on marriage.
Catholic Social Services in Philadelphia is fighting these ideological strong-arm tactics in federal court, and fighting for the needy kids it serves in the process. The U.S. Supreme Court has yet to decide whether to accept their case. Granting review would be the high court’s first step in protecting religious freedom for faith-based groups and the families that desire to work with them to offer stable and loving homes to kids in the most desperate circumstances. This would be an important step to redress a grave injustice in the City of Brotherly Love.
When the city assumed exclusive control over foster care 50 years ago, CSS, a part of the Philadelphia Archdiocese, and other private agencies were bound to partner with the city to find temporary homes for at-risk children. Since then, CSS has supported countless foster care parents willing to open their homes to children. The Catholic Association Foundation filed an amicus brief in the Supreme Court that chronicles the life-giving work CSS has done on behalf of Philly’s foster parents and the children served by CSS.
In early 2018, the city demanded that CSS agree to endorse same-sex couples as foster parents. CSS refused, citing centuries-old Catholic teaching on marriage and the family. It proposed referring same-sex couples to one of the other 29 foster care agencies partnering with the city. The city said no deal.
A commitment to true diversity among their partners, not to mention a commitment to the city’s suffering children, clearly seemed less important than liberal grandstanding.
The city subsequently refused to refer any more children for foster placement to the agency. CSS challenged the city’s dictate in federal court. CSS lost at the district court level. In April, a three-judge panel of the 3rd Circuit Court of Appeals ruled that the city was simply enforcing a neutral law prohibiting discrimination based on a person’s sexual orientation. Supreme Court precedent, the panel said, didn’t require the city make any accommodation for conscientious objectors who want to practice their faith and serve children in trouble.
The legal issues in the Philly foster care case have a national significance that has only grown since then. Just last month, Pennsylvania joined Philadelphia in demanding that faith-based agencies choose between meeting to the needs of vulnerable children and honoring their deeply held religious beliefs on marriage and family. The state’s new religious intolerance comes at a time when trusted partners with decades of experience in foster care and adoption placements are desperately needed.
This month, the Trump administration rolled back the Obama administration regulations that required faith-based foster care and adoption agencies receiving federal grants to work with same-sex couples. Trump’s proposed rule is a significant victory for religious freedom and the rule of law in the United States. It bolsters existing federal anti-discrimination laws to safeguard the rights of conscience and free exercise protected under both the Religious Freedom Restoration Act and the Constitution from encroachment by federal bureaucrats. In short, it merits the applause of all freedom-loving Americans.
But the lawyers at the Becket Fund for Religious Liberty, the religious liberty law firm known for its successful advocacy before the Supreme Court (Hobby Lobby and Little Sisters of the Poor) and the lawyers representing CSS, placed an asterisk next to their applause for the new rule. The reason: Although the changes at the federal level were good, they said, state and local governments are not bound by them. Some are dead set on cutting ties with faith-based organizations holding fast to a traditional view of marriage.
The Supreme Court has the chance to address this by reviewing CSS’s case and ruling that the Constitution does not allow such invidious discrimination against faith-based organizations. It’s critical that champions of children such as CCS can continue finding loving homes for needy kids in a manner consistent with church teaching.
Andrea Picciotti-Bayer is Legal Advisor for The Catholic Association Foundation and co-host of the podcast Conversations with Consequences.
