Symposium: Philadelphia’s exclusion of faith-based foster agency departs from history and undermines interests of children

This article is part of a symposium previewing Fulton v. City of Philadelphia.

James A. Campbell is solicitor general of the state of Nebraska. He filed an amicus brief on behalf of Nebraska, Arizona and Ohio in support of the petitioners.

In Fulton v. City of Philadelphia, the Supreme Court will decide whether Philadelphia may end Catholic Social Services’ 100-year-old foster-care ministry simply because it operates according to its religious beliefs about marriage. As in most First Amendment cases, the key threshold question in resolving the religious group’s free-exercise claim is determining whether strict scrutiny applies.

The court could take many paths to applying strict scrutiny. For one, the justices could jettison the flawed framework established in Employment Division v. Smith — which held that “neutral laws of general applicability” generally do not violate the free exercise clause — and bring much-needed revitalization to free-exercise jurisprudence. For another, Philadelphia’s lack of religious neutrality toward Catholic Social Services — by, among other things, openly challenging the organization’s interpretation of Catholic doctrine — warrants strict scrutiny. Or, as Nebraska, Arizona and Ohio have explained in our amicus brief, free-exercise analysis rooted in our nation’s history and traditions concerning foster care also points the way to strict scrutiny. Choosing that final option, more so than a ruling that turns on the specific facts involving Catholic Social Services, would provide critical guidance to the many states and political subdivisions that continue to work with faith-based foster-care agencies.

Our nation has a long and well-documented history of allowing faith-based organizations to care for foster children without compromising their beliefs. Dating back to colonial times and extending well into the 1800s, religious and other private organizations shouldered the primary burden in caring for orphans and other disadvantaged children — and they did so with little to no government oversight. Religious groups ran orphanages and established successful programs to place children with individual families — an early form of what we now call foster care.

In the latter part of the 1800s, states began to get more involved, but they continued to work through — and rely heavily on — private faith-based groups. Indeed, many of the states’ initial efforts involved funding the existing services of religious organizations. Later still, the states took on a more active role in placing and removing foster children, but even then, they continued contracting with faith-based groups to carry out much of that work.

Fast forward to today, and we see that state and local governments now assert total power over foster-care placements. And as this case illustrates, some are pushing to exclude faith-based agencies that have spent centuries caring for neglected kids. Worse yet, they are doing so because some government officials dislike that those groups operate according to their religious beliefs about marriage — namely, the belief that marriage is the union of one man and one woman, a view that the court has called “decent and honorable.” This dramatic role reversal — and substantial departure from our nation’s traditions — raises the specter of unconstitutionality and demands strict scrutiny.

Locke v. Davey demonstrates the flip-side of this. The court in that case rejected a free-exercise challenge to Washington state’s withholding of public scholarship funds from students pursuing degrees in devotional theology. The court said that our nation has long opposed public funding for church leaders, and thus the state’s exclusion was not “constitutionally suspect.” But the opposite is true here. Philadelphia acted against the backdrop of faith-based groups doing foster-care work for centuries. Excluding Catholic Social Services departed from that history, so Philadelphia’s actions, unlike the law in Locke, are highly irregular and constitutionally suspicious.

That strict scrutiny applies in this case does not mean government officials can never stop working with a faith-based foster-care agency. They can. But they must first demonstrate that they have a compelling interest in shutting down the religious group and that they have acted in a narrowly tailored manner.

Philadelphia has not satisfied those requirements. On the contrary, the city has undermined its interest in caring for foster children. It has done so by eliminating agencies that operate consistently with traditional Catholic (and similar religious) beliefs about marriage, thereby reducing foster-care resources in the midst of an existing shortage.

As states like Nebraska have found, foster-care systems thrive when the government provides a diverse selection of child-placing organizations. Different organizations develop different expertise and target different audiences for their recruiting efforts. The more groups there are, and the more varied they are, the more effective their collective recruiting will be. Because fostering children is difficult work, people often require a deep level of comfort and support before they commit. Allowing prospective foster parents to choose from a broad array of child-placing agencies increases the likelihood that they will find the right organization to serve as their support system. And when states generate a large pool of diverse foster parents, that benefits kids by putting more of them into homes and by facilitating a better fit between the needs of individual children and the strengths of specific foster families.

Faith-based organizations, in particular, excel at recruiting and retaining high-quality foster parents willing to serve the most disadvantaged children, such as those who have suffered abuse or have special needs. For example, a religious group in Arkansas known as The CALL is “the source of of all foster homes” in the state. This success of so many religious organizations makes sense considering that many foster parents are compelled to open their homes to children precisely because of their faith, those foster parents often want to partner with a group that shares their beliefs, and support networks built on a common faith help keep foster parents committed for the long haul.

But eliminating faith-based organizations like Catholic Social Services will jeopardize the interests of foster children. Consider that 36% of foster parents recruited through The CALL said that they would not have become foster parents without that group’s work. Driving those people of faith from the foster system by removing their chosen agency would harm the children they served. The city has no compelling interest in doing this.

Philadelphia nevertheless claims an interest in eliminating discrimination against same-sex couples. But the city has more than two dozen other foster-care agencies willing and able to place children with same-sex couples. With all these options, it’s hard to believe that same-sex couples would select a religious group that doesn’t recognize their union as a marriage. Tellingly, no same-sex couple has ever applied to foster through Catholic Social Services. Philadelphia’s actions are thus a supposed solution in search of a problem.

The court in Masterpiece Cakeshop v. Colorado Civil Rights Commission recognized that the government’s interests in preventing discrimination must give way when a decision not to recognize a same-sex marriage is “well understood in our constitutional order as an exercise of religion.” That’s the case here. Catholic Social Services is a nonprofit religious organization that has been providing foster-care services as a ministry for over 100 years. It declines to recognize same-sex marriages only when partnering with foster parents, while otherwise providing its charitable services to LGBT individuals. The First Amendment protects religious organizations’ right to serve their communities without sacrificing their convictions.

Forcing religious groups to shut down their centuries-old foster-care programs because they operate consistently with their faith is alien to our history and repugnant to our constitutional traditions. The court should put an end to it, and a ruling that focuses on our nation’s history and tradition of foster care is a promising pathway to do exactly that.