15 state senators back Catholic agency in foster dispute

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Fifteen Pennsylvania state senators have submitted an amicus brief to the U.S. Supreme Court urging the justices to compel the City of Philadelphia to refer foster children to Catholic Social Services. CSS does not help place children with same-sex couples.

Philadelphia has contracts with 28 agencies that help find foster homes for about 5,000 children. In March 2018, city officials halted foster-child referrals to CSS due to published reports that CSS won’t help place children in homes headed by same-sex couples. City officials maintain such exclusionary policies violate the city’s Fair Practices Ordinance, which bans anti-LGBT bias in public accommodations.

Two lower courts have sided with the city. But CSS appealed to the U.S. Supreme Court and on Feb. 24, the high court announced it will hear the case. Oral arguments are expected in the fall.

The state senators, all Republicans, are: David Argall (Berks and Schuylkill); Dave Arnold (Dauphin, Lebanon and York); Ryan Aument (Lancaster);  Michele Brooks (Crawford, Erie, Mercer and Warren); Jake Corman (Centre, Huntingdon, Juniata and Mifflin); John DiSanto (Dauphin and Perry); John Gordner (Columbia, Luzerne, Montour, Northumberland and Snyder); Scott Hutchinson (Butler, Clarion, Forest, Venango and Warren); Scott Martin (Lancaster); Doug Mastriano (Adams, Cumberland, Franklin and York); Joe Pittman (Armstrong, Butler, Indiana and Westmoreland); Joseph Scarnati (Cameron, Clearfield, Clinton, Elk, Jefferson, Mckean, Potter and Tioga); Pat Stefano (Fayette, Somerset and Westmoreland); Judy Ward (Blair, Cumberland, Franklin, Fulton and Huntingdon); and Kim Ward (Westmoreland).

None of them returned emails seeking comment.

CSS maintains the city is violating its religious-freedom rights by expecting CSS to work with same-sex couples as foster parents. In a 39-page brief filed last month, 15 Pennsylvania state senators agreed with CSS’ position.

“Everyone is worse off because one of the best providers [CSS] for these [foster] children is being forced out of providing service since it was denied a license due to remaining true to its mission,” the brief states. “Freedom is the better approach.”

The brief emphasizes the importance of having a diverse pool of foster-care providers, which would include CSS. “While the City has an interest in placing children for foster care and adoption, that interest is not harmed by Catholic Social Services,” the brief asserts. “Instead, allowing agencies with a multiplicity of views to operate invites more opportunities to provide homes for these children.”

The brief goes on to urge the high court to overturn a case known as Employment Division vs. Smith, handed down by the high court in 1990. 

“The Smith decision stands for the proposition that you cannot use your religious beliefs to justify violating the law — including a non-disrimination law that everyone has to follow, regardless of their religion,” explained Justin F. Robinette, a local civil-rights attorney.

The state senators’ brief underscores the need to overturn Smith and protect religious-freedom rights to the greatest extent possible. “[R]eligious liberty is subject to a patchwork of protections,” the brief states. “This right deserves consistent protection from our highest court, one that prevents our rights from being traded away and that protects unforeseen threats to this liberty.”

Robinette slammed the state senators’ brief. “These legislators want to roll back the civil-rights advances we’ve made since 1990,” Robinette told PGN. “They want the U.S. Supreme Court to create a constitutionally protected right to discriminate under the guise of religious freedom. Women and minority groups across the nation would be vulnerable to all sorts of discrimination in a variety of settings.”

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 about 34 children in city custody. They were placed in CSS homes prior to the city’s freeze on additional foster children for CSS.

Throughout the dispute, city officials have proclaimed their commitment to providing foster-care services in a bias-free manner. They’ve emphatically denied harboring animus against CSS or Catholicism, according to court papers.

Mary Catherine Roper, deputy legal director of the ACLU of Pennsylvania, issued this statement regarding the controversy:

“When agencies accept taxpayer dollars to provide government services, they do not have a license to discriminate. Here in Pennsylvania, private religious and secular agencies receive taxpayer funding to provide critically important services such as homeless shelters, hospitals, and food centers, in addition to child welfare. Child welfare advocates agree that the needs of children in our child welfare system must come first and that turning away qualified families will hurt the over 400,000 kids in our nation’s foster care system. If the court accepts Catholic Social Services’ position, it would not just mean LGBTQ people could be turned away — but people who are Jewish, Muslim, or Mormon could also be turned away by failing to meet an agency’s religious test. Our government should be doing everything in their power to ensure that no one faces discrimination in government services. We urge our members of Congress to tell the Supreme Court that discrimination should not be required on the taxpayers’ dime.”

CSS is represented by Becket, a conservative law firm based in D.C. that defends religious liberties. The organization had no comment for this story. A spokesperson for the City of Philadelphia declined to comment, citing the pending litigation.