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The Implications of the Philadelphia Catholic Foster Care Case

The U.S. Supreme Court might hear arguments in a case involving Philadelphia, Catholic Social Services (CSS), and foster families. The city ended a contract with CSS to refer children in need of foster care homes. The service requires foster parents to be married, or if single, a birth parent must approve.

The whole thing began when the Philadelphia Inquirer called to ask whether CSS allowed homosexuals to foster children. CSS responded that it would uphold its religious values and not allow homosexuals to foster children, though the Daily Signal reported that the agency “has no history of turning away LGBT couples.” CSS said they’d refer homosexuals to a different agency. The paper contacted the city, which canceled the contract. CSS and three foster families filed a lawsuit.

The National Catholic Register reported that the case could have “major implications.” In a lower court ruling against CSS, the U.S. Court of Appeals for the Third Circuit applied Employment Division v. Smith (1990), a U.S. Supreme Court decision in which the justices ruled that if a law is neutral and applies to everyone, it’s not discriminatory.

In that case, two American Indians were fired for smoking peyote as part of a religious ceremony. The court ruled that there was no religious exemption for the drug use under state law. Nick Reaves, legal counsel with Becket (represents CSS and the foster families), said Smith “basically removes the religious-accommodation aspect from the First Amendment; it says ‘as long as the law applies to everybody and you’re not specifically targeting anybody, that’s fine.'”

Andrea Picciotti-Bayer, a legal adviser for The Catholic Association, said recent laws that target religious groups are different, especially in the context of Obergefell v. Hodges (2015), which legalized homosexual “marriage.”

Picciotti-Bayer explained how religious groups are being targeted by laws that have sprung up in recent years and were not envisioned by the Supreme Court in the Smith decision. “The Smith case in particular, just didn’t envision — because it wasn’t before the court, and it wasn’t an issue before the country — how imposing these … SOGI [sexual orientation and gender identity] laws are and how they can generally be presented as a neutral law. But they’re not really neutral. They’re really going after people of faith and institutions of faith and trying to basically condition people’s thinking, impose ideas on churches and people of faith, especially Catholics.”

Religious liberty is so important, the founders included this guarantee in the country’s founding document. “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof…” Legislative bodies can’t create laws that discriminate against religious entities or impinge on their freedom to exercise their religion.

When the Supreme Court ruled in Obergefell that two men could call themselves “married,” religious Americans understood the implications. Homosexuality is a sin, and marriage is the union between one man and one woman. The decision essentially forced Christians to choose between exercising their religion and exposing themselves to litigation for refusing to sanction homosexuality. If the high court rules in the government’s favor in CSS’s case, it would effectively strike down religious accommodations.

Photo credit: Becket Fund

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