The United States Supreme Court, in a 9-0 decision, ruled that the City of Philadelphia violated the First Amendment rights of the Catholic Archdiocese of Philadelphia by refusing to allow the archdiocese’s Catholic Social Services (CSS) to participate in the city’s foster care program because CSS, based on Catholic religious principles, refuses to place foster children with same-sex couples.

The Court, in Foster v. City of Philadelphia, ruled that “the refusal of Philadelphia to contract with CSS for the provision of foster care services unless it agrees to certify same-sex couples as foster parents cannot survive strict scrutiny, and violates the First Amendment.”

Justice Neil Gorsuch was not entirely pleased with the ruling. In a separate consenting opinion, Gorsuch said that the Court should have gone farther in protecting the First Amendment rights of religious organizations so that these cases will not keep coming up through the Court system. Gorsuch cited the Supreme Court case Employment Division v. Smith, which ruled that while states have the power to accommodate religious beliefs, they are not required to do so. Gorsuch thinks Smith did not go far enough in protecting First Amendment religious liberty. In his opinion, Gorsuch wrote, “Refusing to give CSS the benefit of what we know to be the correct interpretation of the Constitution is picking a side. Smith committed a constitutional error. Only we can fix it. Dodging the question today guarantees it will recur tomorrow. These cases will keep coming until the Court musters the fortitude to supply an answer. Respectfully, it should have done so today.” The case will now be sent back to the Third Circuit Court of Appeals.

Even still, Archbishop Nelson Perez of Philadelphia was happy with the decision, as narrow as it was. “Today’s decision from our nation’s highest court is a profound one. It brings light and relief to children in need of loving homes and foster parents,” Perez said. “It is a crystal clear affirmation of First Amendment rights of Catholic agencies and other religious services serving the most vulnerable.”

Part of the Supreme Court’s rationale for their decision was that Philadelphia allows exemptions to its policies for other agencies, so it must make an exemption for CSS. Also, Chief Justice John Roberts argued that CSS is not attempting to force its religious beliefs on others. They are merely wanting to serve foster children and foster parents in a way that is consistent with their religious principles. Pertinent to that point is that CSS will also not place foster children with heterosexual couples who are not married but only living together. Experts view the case as a narrow one, applying only to this particular relationship between the City of Philadelphia and CSS and not a broad reaching decision. That goes to Justice Gorsuch’s point cited above that these cases will keep coming up until the Supreme Court provides a definitive answer.

Catholic Social Services has been working with the City of Philadelphia for 27 years in their foster care ministry. Only in 2018 did the issue come up when the city learned that CSS was not placing foster children with same-sex couples. Obviously, CSS’s policy pre-dates the legalization of same-sex marriage. In other words, while the secular culture and law has changed in its approach to same-sex marriage and couples, the Catholic Church has not. It makes no sense to be willing to work with Catholic agencies prior to the change in secular law, then refuse to work with them afterwards, when the Church’s teaching has not changed and their practice based on that teaching has not changed. Representatives of the City of Philadelphia have said that they will work with CSS in their foster care program.

In an earlier post, I wrote of how the Supreme Court could rule broadly or narrowly on this question, choosing to protect religious organizations and programs in the future from attacks on their faith principles, or choosing only to make a decision on this particular case. Unfortunately, they chose the latter. Justice Gorsuch is right, though. The Court should have had the courage to fully protect the First Amendment rights of religious organizations and programs and shot down Smith.

Be Christ for all. Bring Christ to all. See Christ in all.