Religious freedom advocates express optimism after Fulton decision 

Washington D.C., Jun 28, 2021 / 13:30 pm

Religious freedom advocates on Monday applauded a recent Supreme Court decision, arguing it heralds a positive outlook for religious freedom cases of Catholic adoption and foster care agencies nationwide. 

Earlier this month, the high court ruled unanimously in favor of two foster moms and Catholic Social Services of the Philadelphia archdiocese, in the case of Fulton v. City of Philadelphia. 

The court found that the city violated the group’s free exercise of religion when it stopped partnering with the agency in its foster-care program. Catholic Social Services would not certify same-sex couples as foster parents on religious grounds, which the city said violated its nondiscrimination ordinance. 

At a virtual panel discussion on Monday hosted by the Heritage Foundation, a conservative think tank, Lori Windham - senior counsel at Becket and the attorney who argued on behalf of the plaintiffs before the Supreme Court - said that “Philadelphia could not pass strict scrutiny” in the case.

“They did have to meet the highest level of legal scrutiny if they wanted to exclude Catholic Social Services, and they weren't able to do that,” Windham said, noting the Supreme Court acknowledged that with the Catholic agency operational, there would be more homes for children in Philadelphia. 

“What the courts are saying you need to do is go and look more closely at the circumstances of the case,” Windham said, noting the court has indicated that accommodations and alternatives should be considered when state and local nondiscrimination ordinances conflict with the religious mission of faith-based agencies. 

Windham noted that Catholic Social Services never actually turned away any same-sex couples seeking to adopt, as the city inquired of the agency’s policy only after a local newspaper reported it. 

Roger Severino, the former head of the Department of Health and Human Services’ Office of Civil Rights, said he was “encouraged” by the Fulton ruling. 

“The message was clear; that people of faith who take a position that rubs contrary to some of the pervading cultural whims on sexual orientation or gender identity should not be labeled as bigots and excluded from participation in public life,” Severino said. 

Asked if the Supreme Court’s decision was narrow in scope, Severino stressed the decision was unanimous. 

All nine justices sided with Catholic Social Services and the foster moms in the case. Chief Justice John Roberts authored the court’s opinion, and was joined by Justices Stephen Breyer, Sonia Sotomayor, Elena Kagan, Brett Kavanaugh, and Amy Coney Barrett. Justice Samuel Alito filed a concurring opinion, joined by Justices Clarence Thomas and Neil Gorsuch. Gorsuch also filed a concurring opinion, joined by Thomas and Alito, and Barrett also filed a concurring opinion, joined by Kavanaugh, and Breyer - in part.

Justice Samuel Alito, in his concurrence, said that Roberts’ opinion was narrow and hinged upon details of the city of Philadelphia’s contract. Should those details be altered in accord with the opinion of the court, Catholic Social Services could again be shut out of foster care in Philadelphia, he noted. 

“This decision might as well be written on the dissolving paper sold in magic shops,” Alito said of the opinion of the court. 

Severino, however, said that the unanimous ruling does send a signal about how the court will respond to such cases in the future, even if the ruling doesn’t impact other cases outright. Other Catholic and Christian adoption and foster care agencies around the country have been faced with similar nondiscrimination requirements that they match children with same-sex couples.

“An overarching tide is coming in, where no longer are you going to say that no longer can people who have religious beliefs about marriage being the union of a man and a woman can be labeled bigots and excluded,” Severino said. 

He added that “religious exercise comes at a cost.” 

“This is not a free pass for religious believers, it is allowing them space to live out their lives as their faith dictates,” he said.