by Rabbi Yaakov Menken, in The Federalist

Not just foster care providers, but religious groups of all kinds are closely following the case of Fulton v. the City of Philadelphia. Indeed, all those who care about our nation’s children should be.

While this case before the U.S. Supreme Court to be decided in 2021 directly concerns the provision of foster care, by placing hypothetical arguments about non-discrimination ahead of the religious freedoms ensconced in the First Amendment — and ahead of children’s actual needs — the broader ramifications of the case threaten to force religion further from the public sphere.

In his dissent in Obergefell v. Hodges in 2012, Chief Justice John Roberts wrote:

The majority offers a cursory assurance that it does not intend to disparage people who, as a matter of conscience, cannot accept same-sex marriage. That disclaimer is hard to square with the very next sentence, in which the majority explains that ‘the necessary consequence’ of laws codifying the traditional definition of marriage is to ‘demean or stigmatize’ same-sex couples.

Fulton v. Philadelphia demonstrates how right Roberts was to be concerned. The attorney for the city, Neal Katyal, claimed during oral arguments that a religious foster care agency, by following the prescriptions of the religion which it represents, would “stigmatize” LGBTQ individuals, especially children. Having asserted that traditional religious beliefs are bigoted and damaging, he thus argues that they must be prohibited in practice.

In particular, the city’s claim that the stigma is associated with Catholic Social Services’s provision of foster care cannot withstand even a cursory examination. Whatever feeling of harm or stigma might be involved, it would emerge from the biblical belief — which is supposed to be protected by the First Amendment — that same-sex relationships are forbidden; whether or not this teaching was applied to foster care would be essentially irrelevant. Yet the city, knowing that it can’t directly attack religion, claims that the damage occurs when a religious foster care agency conforms to those beliefs.

Taking the attack on religion a step further, Philadelphia equated religious diversity with mutual hostility: its lawyer claimed that foster care would be “balkanized” if various religious groups were each allowed to serve children in need consistent with their religious beliefs, working with supportive families seeking to partner with those agencies. Frankly, it’s quite scary to see such open hostility to free, diverse religious practice from a city government — and one could hardly seek more decisive proof that freedom of religion is, in fact, on trial in this case.

The threat here is clear, and not limited to Catholics. In Judaism, we believe it essential to raise a Jewish child to learn both our books and our observances. If applied consistently, the city’s argument would prohibit a Jewish agency from insisting upon placing a Jewish child in a Jewish home. Rather than demonstrating the First Amendment’s respect for different traditions and beliefs, Philadelphia is demanding universal conformity to state doctrine.

What is most troubling in all of this is that the city has lost sight of the ultimate goal: to serve children in need of foster care. There is a grave shortage of families willing to open their homes to foster children, and religious agencies, by working specifically within their faith communities, can expand that pool.

Plaintiff Sharonell Fulton is but one of many who are certified by Catholic Social Services and have room in their homes to care for children. The city is keeping these foster care providers on the sidelines because of CSS’s religious beliefs, offering only theoretical arguments about hypothetical harms to justify callous denial of homes to children in need.

As was clear at oral argument, no same-sex couple has been prevented from fostering or adopting by Catholic Social Services, or ever would be. Were such a couple to ever present itself to CSS, attorney Lori Windham told the court, CSS would help the couple to find one of the many other agencies that can assist them and better attend to their needs.

Based solely upon a far-fetched, theoretical claim of “stigma” that reflects hostility towards biblical beliefs, the city’s actions are therefore forcing dozens if not hundreds of actual (very non-theoretical) children to languish in group homes and institutional settings rather than being placed with loving foster parents.

The city has made its disregard for children’s actual needs quite obvious. Responding to the fact that Catholic Social Services has provided foster care to needy Philadelphia children for more than two centuries, long before the government was involved, Katyal argued that “whatever these [private] entities did before, like CSS, they never selected who cares for kids in city custody, applying state criteria.” In other words, the city claimed that whether these children are wards of the state is a more central consideration than whether they need foster care.

This is heartless, and even more fundamentally flawed. To be sure, the city has not argued that CSS provides an inferior service. It even acknowledged that CSS has been a “point of light” in the child welfare system. Yet the city also claims that closing down such an agency and preventing it from helping the more than 250 children in need of a foster home today would somehow be a net benefit for society.

So it is not merely true that Philadelphia wishes to squelch free religious practice — it is also clear that the city is far more anxious to punish the free exercise of religion than it is to serve the city’s most vulnerable children. The shocking part is that it was necessary to go all the way to the Supreme Court to ask for the obvious: that the city of Philadelphia should both respect different religious beliefs, and put the needs of children first.