U.S. Supreme Court will hear Philly same-sex foster care dispute

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The U.S. Supreme Court announced Feb. 24 that it will hear the case of Catholic Social Services of Philadelphia, an agency that no longer receives foster-child referrals from the city because it won’t place those children with same-sex couples.

Arguments are expected to be held in the fall.

In March 2018, city officials halted foster-child referrals to CSS, after published reports spotlighted CSS’ anti-LGBT policies. CSS also won’t place children in homes headed by unmarried opposite-sex couples. City officials maintain such exclusionary policies violate the city’s Fair Practices Ordinance.

CSS claims the city is violating its religious-freedom and free-speech rights. But U.S. District Judge Petrese B. Tucker rejected CSS’ claims in July 2018. “Philadelphia has a legitimate interest in ensuring that that the pool of foster parents and resource caregivers is as diverse and broad as the children in need of foster parents and resource caregivers,” Tucker wrote, in her decision.

In November 2018, oral arguments on the dispute were held before a three-judge panel of the 3rd U.S. Circuit Court of Appeals. In April 2019, the panel upheld Tucker’s ruling.

The panel stated that CSS failed to demonstrate a violation of its constitutional rights by city officials. “The city stands on firm ground in requiring its contractors to abide by the city’s nondiscrimination policies when administering public services,” wrote the panel, consisting of Third Circuit judges Thomas L. Ambro, Marjorie O. Rendell and Anthony J. Scirica.

In July 2019, CSS petitioned the Supreme Court to hear the case and the high court granted that petition on Feb. 24.  In court papers, CSS said it will have to phase out its foster-care program if it doesn’t receive additional foster-child referrals from the city. CSS currently provides foster-care services for 38 children in city custody. Philadelphia has contracts with two dozen agencies that help find foster homes for about 5,000 children.

Throughout the dispute, city officials emphasized their commitment to providing foster-care services in a bias-free manner. They also said they don’t harbor animus against Catholicism. According to city records, the city pays about $26 million annually to CSS for a variety of services apart from foster-care services. About $4 million of those funds come from city tax dollars. The remaining funds come from state and federal grants.

CSS is represented by Becket, a conservative law firm based in D.C. that defends religious liberties  “I’m relieved to hear that the Supreme Court will weigh in on faith-based adoption and foster care,” said Lori Windham, senior counsel at Becket. “Over the last few years, agencies have been closing their doors across the country,

and all the while children are pouring into the system. We are confident that the [Supreme] Court will realize that the best solution is the one that has worked in Philadelphia for a century — all hands on deck for foster kids.”

Marcel S. Pratt, city solicitor for the city, issued this statement: “The City of Philadelphia is proud of our longstanding commitment to supporting freedom of religion and preserving equal access to services for all people — regardless of their race, national origin, religion, age, sex, disability, sexual orientation or gender identity. Abiding by that commitment is central to any contract that the City enters into. 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, as reflected in its original contract and reaffirmed in the most recent contract offered to all foster care providers.”

Pratt added: “The City believes that the ruling from the Third Circuit affirming the City’s ability to uphold nondiscrimination policies was correct and will now prepare to demonstrate this to the U.S. Supreme Court. This case is ultimately about serving the youth in our care. And the best way to do that is by upholding our sincere commitment to the dignity of all people, including our LGBTQ community. In the meantime, the City is proud to continue its relationship with CSS and its partnership with many other agencies — secular and religious — in serving all city residents.”

Leslie Cooper, deputy director of the national ACLU’s  LGBT and HIV Project, issued this statement: “This case could have profound consequences for the more than 400,000 children in foster care across the country. We already have a severe shortage of foster families willing and able to open their hearts and homes to these children. Allowing foster care agencies to exclude qualified families based on religious requirements that have nothing to do with the ability to care for a child such as their sexual orientation or faith would make it even worse. We can’t afford to have loving families turned away or deterred by the risk of discrimination.”

Justin F. Robinette, a local civil-rights attorney, expressed concern about the Supreme Court’s decision to hear the case. “Given the composition of the Supreme Court, this recent development is very disconcerting. It doesn’t bode well for the city. The court has a majority of five conservatives, and I don’t see them ruling in favor of the city’s position.”