Supreme Court to take on LGBTQ foster care case

The Supreme Court announced Monday it will hear a case next term involving the city of Philadelphia’s decision to no longer work with foster care agencies that refuse to place children with married, same-sex couples.

Catholic Social Services sued Philadelphia after officials said the Human Services Department no longer would certify foster care agencies that do not comply with the city’s anti-discrimination policy, effectively shutting off public funds to the social services arm of the Archdiocese of Philadelphia.

Philadelphia’s city solicitor stood by the decision to end the partnership with Catholic Social Services (CSS) over anti-discrimination violations, which were reported in an investigation by The Philadelphia Inquirer.

“Unfortunately, CSS refused to consider qualified same-sex couples to become foster parents — even when these couples would be a safe, loving family for the child — and in doing so, CSS defied the City’s nondiscrimination policy,” City Solicitor Marcel S. Pratt said Monday in a written statement.

Groups advocating for religious liberty for child placement agencies welcomed the high court’s announcement. The archdiocese cheered the decision, having placed children in homes as an extension of its religious ministry since the late 18th century.

“There’s no reason to single out and punish adoption providers who are motivated by their sincerely held religious beliefs that the best home for a child includes a mother and father,” said Keisha Russell, counsel at First Liberty Institute, the law firm representing the plaintiffs. “When the government decides whose faith is or is not acceptable, we all lose.”

The Supreme Court’s announcement comes almost a year after a three-judge panel of the U.S. Court of Appeals for the 3rd Circuit unanimously upheld a lower court’s dismissal of a lawsuit filed by foster parents for CSS, ruling that the city had acted to end discrimination against LGBTQ parents, not out of anti-religious bigotry.

But attorneys for plaintiffs pointed to a conversation between Human Services Commissioner Cynthia Figueroa and Catholic Human Services Secretary James Amato. Ms. Figueroa, who is Catholic, encouraged Mr. Amato abandon the church’s opposition to same-sex marriage and adopt a more lenient posture espoused by Pope Francis.

Attorneys say the conversation amounted to a government official telling a faith practitioner how to live his faith, a clear violation of the free exercise clause of the First Amendment.

“[T]he City is trying to exclude CSS from foster care because CSS refuses to embrace the City’s beliefs about marriage,” the plaintiffs’ lawsuit states.

In court documents, CSS says the number of children it has placed in foster care has dropped from 120 to 60 since the decision two years ago.

On Monday, plaintiffs reacted positively to the court’s decision.

“CSS has been a godsend to my family and so many like ours. 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,” said Toni Simms-Busch, a former social worker who recently adopted the children she fostered through Catholic Social Services. “We are so grateful that the Supreme Court has agreed to hear our case and sort out the mess that Philadelphia has created for so many vulnerable foster children.”

Officials with the American Civil Liberties Union warned that a win for religious liberty advocates could lead to ripple effects in other states, where religiously affiliated foster care agencies refuse to work with not only LGBTQ parents but also couples who do not pass an agency’s religious test.

“This is not hypothetical,” said Leslie Cooper, deputy director of the LGBT & HIV Project of the ACLU, noting child placement agencies in South Carolina that refuse to work with parents who are not evangelical Christians.

Nearly 6,000 children are in Philadelphia’s foster and child placement system, according to court records.