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Supreme Court Upholds First Amendment Right of Catholic Church To Participate in Children’s Foster Care Program While Barring Sodomite Couples From Participating

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Published on: June 19, 2021

WASHINGTON, DC — In a victory for religious freedom, the U.S. Supreme Court has affirmed the First Amendment right of a Catholic ministry to participate in a city-run children’s foster care program. In Fulton v. City of Philadelphia, a unanimous Supreme Court found the City of Philadelphia’s attempts to forbid the Catholic Church from participating in foster care programs because of the church’s refusal to certify same-sex or unmarried couples as foster families, based on its religious beliefs, to be unconstitutional. In issuing the decision, the justices found that the city did not have a compelling interest in preventing the church from caring for orphaned and abused children. The Rutherford Institute filed an amicus brief in defense of the church’s right to not be penalized for its religious beliefs.

Affiliate attorneys Michael J. Lockerby, Michael A. Donation, and Adam J. Kleinfeld of Foley & Lardner LLP assisted in advancing the arguments in Fulton.

“Religious freedom and freedom of conscience are among the most basic and fundamental rights guaranteed in the Constitution. The Framers of the U.S. Constitution understood quite clearly that religious freedom is one of the most fundamental human rights,” said constitutional attorney John W. Whitehead, president of The Rutherford Institute and author of Battlefield America: The War on the American People. “Under the First Amendment, the government may not discriminate against religious institutions or individuals on the basis of their religious beliefs or deny them the right to freely exercise their religion.”

For over 200 years, the Catholic Archdiocese of Philadelphia has been providing care for orphans as part of its religious mission. Long before the City of Philadelphia began providing services to orphans and abused children, the Catholic Church worked to care for and find foster homes for orphans and abused and neglected children as part of its Catholic Social Services (CSS). Although state law gave authority to determine the care and custody of orphans and abused children to public entities such as the City of Philadelphia during the 20th century, it also allowed state-licensed foster-care agencies, including CSS, to conduct home studies and certify foster families to receive and care for orphans and abused children. Philadelphia and CSS entered into a contract under which CSS would certify foster families and recommend them for foster child placements. However, CSS does not certify same-sex or unmarried couples as foster families because of its religious beliefs.  In 2018, the city determined that CSS was in violation of a provision of its contract not to engage in sexual orientation discrimination.  As a result, it barred CSS from further participation in the foster care program. CSS sued Philadelphia, alleging that its removal from the foster care program violated its First Amendment right to free exercise of religion. Both the trial and appeals courts ruled that the contract provision barring sexual orientation discrimination is a neutral and generally applicable rule.  On further review, however, the U.S. Supreme Court found that the city’s non-discrimination ordinance did not apply to CSS and the contract provision was not generally applicable because certain city officials were given discretion to make exceptions to it.  Therefore, the city was required to demonstrate a compelling interest in denying CSS an exception to the nondiscrimination provision, which it could not do.

The Rutherford Institute, a nonprofit civil liberties organization, provides legal assistance at no charge to individuals whose constitutional rights have been threatened or violated and educates the public on a wide spectrum of issues affecting their freedoms.

The Supreme Court’s opinion in Fulton v. City of Philadelphia

The Rutherford Institute’s amicus brief in Fulton v. City of Philadelphia 

Article posted with permission from John Whitehead

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