Victory at SCOTUS for Foster Care Ministry

Jun 17, 2021

The U.S. Supreme Court ruled unanimously in favor of Catholic Social Services, a foster care agency that refuses to compromise its religious beliefs by placing children with same-sex couples. The High Court’s decision in Fulton v. City of Philadelphia has a significant impact on every area of the free exercise of religious freedom. Six justices joined in the full opinion (Chief Justice Roberts, Breyer, Sotomayor, Kagan, Kavanaugh, and Barrett), but all justices joined in the judgment in favor of Catholic Social Services. 

Barrett filed a concurring opinion, in which Kavanaugh, and Breyer joined, stating that this case triggered strict scrutiny, and thus there was no reason to overrule the case of Employment Division v. Smith. 

Alito wrote a 77-page concurrence, in which Thomas and Gorsuch joined, arguing that the 1990 Smith decision should be overturned. 

Gorsuch filed an opinion concurring in the judgment, in which Thomas and Alito joined, also arguing that Smith should be overturned. 

In Fulton v. City of Philadelphia, Catholic Social Services and two foster parents, the late Cecilia Paul and Sharonell Fulton (who have fostered more than 140 children collectively), asked the Supreme Court to revisit Employment Division v. Smith, probably the worst First Amendment Free Exercise decision from the High Court.

The Smith decision weakened the Free Exercise Clause. As a result of Smith, Congress passed the Religious Freedom Restoration Act (RFRA), which restored the free exercise protections as they were prior to 1990. However, the federal RFRA only applies to federal laws and does not protect violations of free exercise of religion by the states. Congress later passed Religious Land Use and Institutionalized Persons Act that applies to state and local zoning laws. After Smith, several states passed similar Religious Freedom Restoration Acts patterned for the most part after the federal RFRA. The Free Exercise Clause should have never been weakened as it was in 1990 by the Court. The Smith decision has also done considerable damage to the First Amendment. Many Supreme Court justices have criticized Smith and called for it to be overturned. The Smith decision must be overturned, but that decision will have to wait for another day. 

In March 2018, the city canceled its contracts with Catholic Social Services due to its religious beliefs about marriage. This happened not long after the city issued an urgent call for 300 families to provide foster care to help care for the flood of children coming into the system due to the opioid crisis. The city then prohibited Catholic Social Services from placing any more children with the families it had already certified, in order to investigate whether the agency had violated the city’s Fair Practices Ordinance, a policy that prohibits “discrimination” on the basis of “sexual orientation” or “gender identity.” 

Foster parents licensed through Catholic Social Services sought an order to require the city to renew its contract, arguing that the city’s decision violated its religious freedom under the Constitution. The Third Circuit Court of Appeals previously denied Catholic Social Services’ request for a preliminary injunction in its lawsuit against the city of Philadelphia. 

Liberty Counsel Founder and Chairman Mat Staver said, “The unanimous decision based on the Free Exercise of Religion is a great victory for religious freedom. Faith-based ministries must remain free to exercise their faith in their respective ministries. Religious freedom lays at the foundation of America. The Supreme Court must revisit the 1990 Smith decision which was not faithful to the First Amendment and overrule it.” 



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