Supreme Court Faces Religious Freedom Test in Dispute Over Same-Sex Foster Parents


The Supreme Court on Wednesday seemed likely to side with a Roman Catholic social services agency in a dispute with Philadelphia over the agency’s refusal to work with same-sex couples as foster parents.

The case is a big test of religious rights on a conservative court.

Catholic Social Services, which is affiliated with the Archdiocese of Philadelphia, says its religious convictions keep it from certifying same-sex couples as foster parents. It argues it shouldn’t be shut out of a contract with the city to find foster homes for children.

Philadelphia says it prohibits the foster care agencies with which it works from discriminating against same-sex couples.

With the addition of three appointees of President Donald Trump, Justices Neil Gorsuch, Brett Kavanaugh and Amy Coney Barrett, the high court seems poised to extend protections of religious freedoms.

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Kavanaugh, for his part, suggested Wednesday that there should be a way for Catholic Social Services to continue to work with foster families. The case, Kavanaugh said, requires the justices to think about how to balance “very important rights.”

“It seems when those rights come into conflict, all levels of government should be careful and should often, where possible and appropriate, look for ways to accommodate both interests in reasonable ways,” he said.

During nearly two hours of arguments on Wednesday morning, several justices brought up the fact that there’s no record of any same-sex couple asking to work with Catholic Social Services and being turned away.

If a couple did ask, they’d be referred to another of the more than two dozen agencies with which the city works, Catholic Social Services says.

Do you think Catholic Social Services should be forced to work with same-sex couples?

The justices, seven of whom are Roman Catholic or attended Roman Catholic schools, also asked about other hypothetical contracts officials might make.

Justice Stephen Breyer asked what would happen if a religious organization bidding on a transportation contract wanted men and women to sit separately, or women to wear head scarves.

“If there’s an agency that refuses to employ women, would the state have to contract with that agency?” Justice Elena Kagan asked at one point.

And Barrett, hearing her third day of arguments at the high court, asked about a hypothetical case in which a state contract with a private Catholic hospital requires it to perform abortions.

The case before the justices, Fulton v. City of Philadelphia, began in 2018 after a Philadelphia Inquirer reporter notified city officials that two of the foster care agencies with which the city contracted would not work with same-sex couples. One of the agencies, Bethany Christian Services, changed its policy.

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Catholic Social Services did not, and the city stopped placing children with the agency, which sued.

Catholic Social Services says it views certifying a family as a foster family as an “endorsement of the relationships of those living in the home” and therefore its religious beliefs prevent it from certifying same-sex couples. It also doesn’t work with unmarried couples.

The Trump administration has urged the Supreme Court to side with the agency, saying Philadelphia is unconstitutionally discriminating against religion.

Two lower courts sided with Philadelphia.

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