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Supreme Court Backs Christian Foster Care Agency

In a unanimous ruling, justices say a municipality cannot force providers to license same-sex couples.

The U.S. Supreme Court Thursday ruled unanimously that the city of Philadelphia erred in shutting down a Catholic charity’s foster care program because the institution refused to consider same-sex couples as parents.

The city of Philadelphia terminated its monopolistic foster care placement contract over the archdiocese’s Catholic Social Services (CSS) because the agency wouldn’t adhere to the municipality’s mandate of licensing gay and lesbian foster parents. Even though more than two dozen other private foster care providers in the city do accept same-sex couples as foster parents, the city claimed it had a compelling interest to force CSS to do so. Two lower courts had upheld the city’s stance.

CSS refused, citing religious principles of the sanctity of traditional marriage between one man and one woman. The city granted no religious exemptions for complying.

Chief Justice John G. Roberts Jr. authored the 9-0 Supreme Court opinion in Sharonell Fulton et. al v. City of Philadelphia. He said the city’s refusal to contract with CSS violated the Free Exercise Clause of the First Amendment.

“The city’s actions burdened CSS’s religious exercise by forcing it to either curtail its mission or to certify same-sex couples as foster parents in violation of its religious beliefs,” Roberts wrote. The chief justice said the city does not have a compelling interest in refusing to contract with CSS and that CSS didn’t seek to impose its religious beliefs on anyone. The Catholic Church has been involved in serving needy children in Philadelphia for over two centuries.

Roberts, one of six justices on the current court who is Catholic — an unprecedented ratio — said the city’s actions burdened CSS’s religious exercise by forcing the agency to curtail its mission or approve of sexual relationships inconsistent with doctrines.

“Government fails to act neutrally when it proceeds in a manner intolerant of religious beliefs or restricts practices because of their religious nature,” Roberts wrote.

In a separate concurring opinion, Justice Samuel Alito lambasted the city for its restrictive policy, noting that no same-sex couples had been denied the opportunity to be foster parents as a result. Many Christians have long regarded providing foster care as a biblical imperative, Alito wrote.

“The city of Philadelphia has issued an ultimatum to an arm of the Catholic Church,” Alito said. “Either engage in conduct that the Church views as contrary to the traditional Christian understanding of marriage or abandon a mission that dates back to the earliest days of the Church — providing for the care of orphaned and abandoned children.”

Alito noted there is an acute shortage of foster parents, both in Philadelphia and across the nation, and by ousting CSS, the city eliminated one of its major sources of foster homes.

Sharonell Fulton and Toni Simms-Busch, two African American single mothers who between them have welcomed more than 45 foster kids into their homes, sued in 2018 after the city of Philadelphia excluded Catholic Social Services from its approved list of foster care agencies. The Becket Fund for Religious Liberty, a law firm based in Washington, D.C., represented the women. Around 70 percent of the children CSS serves are racial minorities.

During oral arguments last November, Alito said the city’s primary concern isn’t about ensuring that foster kids have good homes.

“It’s the fact that the city can’t stand the message that Catholic Social Services and the archdiocese are sending by continuing to adhere to the old-fashioned view about marriage,” Alito stated.

In another separate concurring opinion Thursday, Justice Neil Gorsuch likewise criticized the city for elevating sexual preference dictates over religious liberties.

“The city has expressed its determination to put CSS to a choice: give up your sincerely held beliefs or give up serving foster children and families,” Gorsuch wrote. “If CSS is unwilling to provide foster-care services to same-sex couples, the city prefers that CSS provide no foster-care services at all.”

During oral presentations seven months ago, Justice Brett Kavanaugh blamed the city of Philadelphia for “creating a clash” and “looking for a fight.” Kavanaugh said Supreme Court sexual liberties decisions in 2015 in Obergefell v. Hodges and in 2018 in Masterpiece Cake Shop v. Colorado Civil Rights Commission both guaranteed religious dissension.

“What I fear here is that the absolutist and extreme position that you’re articulating would require us to go back on the promise of respect for religious believers,” Kavanaugh told Neal Katyal, attorney for the city of Philadelphia.

Another high-profile case three years ago involved a clash between religious liberties and LBGT-rights. Justices ruled 7-2 that Christian baker Jack C. Phillips couldn’t be forced to bake a specialty cake celebrating the marriage of two homosexual men.

Christian foster care providers reacted with gratitude and relief over the Thursday decision. The Assemblies of God is at the forefront of denominations seeking to ameliorate the foster care crisis.

Jay Mooney, executive director of Hot Springs, Arkansas-based COMPACT Family Services, the national child welfare mission of the AG, says the ruling has huge implications for foster care providers and the country.

“The Fulton v Philadelphia decision affirms the constitutional right to religious liberty for millions of Americans,” says Mooney, an ordained AG minister. “States and local governments cannot require foster care agencies to certify same-sex couples.”

Mooney, 59, says COMPACT will continue adhering to foster family programs and policies that align with the beliefs and positions of the Fellowship.

Sharen Ford, director for foster care and adoption at Focus on the Family in Colorado Springs, also is appreciative.

“This decision is a win for children and for faith-based foster care/adoption agencies,” says Ford, an ordained AG minister. However, she says the situation for homes remains critical.

“There are children across the nation in need of quality foster families and permanent families,” says Ford, 65. “ We need the Church to continue to speak up for those who can’t speak for themselves.”

Photo Credit: Becket

John W. Kennedy

John W. Kennedy served as news editor of AG News from its inception in 2014 until retiring in 2023. He previously spent 15 years as news editor of the Pentecostal Evangel and seven years as news editor at Christianity Today.