Thank God for Supreme Court’s Look at Same-Sex Foster Parents

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A few years ago, an LGBTQ couple approached Bethany Christian Services and expressed an interest in becoming foster parents. Bethany Christian, which maintained a contract with the city of Philadelphia to provide foster care, turned them down based on a religious opposition to same-sex unions. The Inquirer ran a story on the incident and mentioned that Catholic Social Services (CSS) had a similar arrangement with the city and also refused to consider LGBTQ couples.

After the article appeared, Bethany Christian changed their policy to accept members of the LGBTQ community. CSS did not, and their contract was promptly canceled. They sued the city on the grounds that their religious rights were being violated. The named plaintiff was Sharonell Fulton, a foster parent who had worked with the Catholic agency for many years. Two lower courts ruled against CSS, holding that the same-sex ban amounted to discrimination in violation of the city charter.

This week, the Supreme Court agreed to hear the case. And my reaction was: Amen.

Many people mistakenly believe that receiving public funds requires you to accommodate – without exception – the requirements and mandates of your secular sponsor, even if they violate your own civil rights. A number of commentators praised the lower court decisions, expressing a view articulated by one of the women who had approached Bethany Christian in the first place, Megan Pazko: “I simply think you shouldn’t be able to use taxpayer dollars to discriminate against LGBTQ parents.”

But it’s not that simple.

When trying to decide how far the government can go in forcing an agency that receives public funds to compromise its fundamental beliefs, courts employ a balancing test. The best explanation of that test can be found in the Religious Freedom Restoration Act, legislation passed in 1993 and proposed by none other than Chuck Schumer when he was still a congressman from New York. The Act states that “The government shall not substantially burden a person’s exercise of religion even if the burden results from a rule of general applicability.”

In other words, an anti-discrimination law designed to protect LGBTQ citizens but that forces a Catholic organization to violate its tenets (even if this was not the primary purpose of the law) is unconstitutional under the First Amendment.

There is a narrow exception: the burden on the religious organization must be necessary to further “a compelling government interest” and it must be the “least restrictive way” that the interest can be achieved.

RFRA only applies to federal funding, so some states have passed their own “baby” statutes. Pennsylvania’s was passed in 2002, and basically follows the original law.

So if we apply RFRA to the foster care controversy, it’s not hard to see that in its laudable attempt to protect the rights of LGBTQ citizens, Philadelphia has trampled over the rights of Catholic Social Services. The organization operates according to the principles of our faith, one of which holds that marriage is limited to one man and one woman. It’s not surprising, then, that CSS also refuses to place children with heterosexual unmarried couples. To my knowledge, none of them have sued. The ban is not directed at LGBTQ persons. It is directed at anyone who, in their principles or lifestyle, violates the most deeply-held values of the Catholic Church.

There were other ways in which the city could have resolved the controversy. CSS is only one of 29 foster care agencies doing business in Philadelphia. That provided a wide pool of families for needy children, a pool which includes LGBTQ-friendly organizations. Shutting down CSS was a draconian reaction when there were other alternatives.

Lori Windham, senior counsel at the Becket Law firm which is representing CSS, observed that “We are confident that the court will realize that the best solution is the one that has worked in Philadelphia for a century: all hands on deck.”

And that’s really the crux of the issue. If there were no other organizations accepting LGBTQ couples, perhaps the city would be right. But that’s clearly not the case. Coming down on a Catholic organization for ministering to children according to the dictates of a faith that doesn’t evolve with changing societal mores is patently wrong.

I’m betting this Supreme Court will agree.

Copyright 2020 Christine Flowers. Flowers is an attorney and a columnist for the Philadelphia Inquirer, and can be reached at [email protected].

Christine Flowers is a Philadelphian who loves the Eagles but can leave the cheesesteaks. She writes about anything that will likely annoy the majority of people, and in her spare time practices immigration law (which is bound to annoy at least some people.)