By Philip Van Slooten
Capital News Service
ANNAPOLIS, Md. — The Supreme Court heard arguments Wednesday on Fulton v. City of Philadelphia, which questions whether religious-based foster care agencies that choose not to work with same-sex parents are exempt from nondiscrimination laws.
Maryland’s Catholic Charities of Baltimore no longer provides foster or adoption services, but FreeState Justice, a statewide LGBTQ advocacy group, fears other social services could be affected by a religious-exemption ruling.
At Wednesday’s hearing, Justice Stephen Breyer asked Lori H. Windham, a lawyer for the petitioners, if Catholic Social Services could just evaluate a couple “irrespective of same or different sex,” but she said it would be “essentially a validation of the relationships in the home” and against the organization’s “deeply held religious beliefs” regarding same-sex marriages.
In 2018, the City of Philadelphia prohibited Catholic Social Services from placing children in foster homes because it learned through a Philadelphia Inquirer article that the organization could refuse same-sex couples for religious reasons.
While Justice Brett Kavanaugh pointed out Catholic Social Services had not actually turned away any same-sex parents, the city’s attorneys stated the potential rejection from an organization contracting with the city was still a concern.
Sharonell Fulton and Toni Simms-Bush, both of whom fostered children through Catholic Social Services, sued the city for limiting their choice of provider based on religious beliefs.
Justices listened via phone conference as a continuing COVID-19 precaution while Windham, and Department of Justice attorney Hashim M. Mooppan, argued Philadelphia’s nondiscrimination ordinance violated her clients’ right to freely exercise their religious beliefs.
Attorneys Neal K. Katyal and Jeffrey L. Fisher argued the city’s position that its nondiscrimination ordinance was neutrally applied and did not single out Catholic Social Services based on their religious beliefs.
“Ruling (for religious exemptions) would insert federal courts into contracting decisions in all 50 states and imperil government services in many spheres,” Katyal told justices Wednesday. “It means (government contractors) could discriminate against LGBT kids or categorically against foster parents for gender or religion.”
Mark Graber, a University of Maryland law professor and a leading scholar of constitutional law and politics, said this case asks whether religious agencies that contract with the government, or that receive public funds for public services, can be exempted from nondiscrimination laws.
He said that answer has to be no.
“Let’s say the state runs a fire department,” Graber told Capital News Service on Thursday, “If private people want to contract with the city and run their own fire department, when there’s a fire you have to put it out regardless of if that house is of a black person, a gay person and so forth. The state is allowed to license a behavior and attach nondiscriminatory conditions to a license. So, if you want to participate in the state adoption program, you have to play by the state rules.”
Maryland’s adoption program is managed at the state level by the Maryland Department of Human Services. It is a foster-to-adopt program where families are selected as “foster / adoptive homes,” according to its website.
Maryland contracts with private religious and secular agencies, such as Lutheran Social Services and Adoptions Together. Both work with same-sex couples.
Former College Park, Maryland, City Councilmember PJ Brennan and his husband, Nick, adopted Benji, 3, and Kayden, 16 months, through Adoptions Together, which has locations in Maryland, Virginia and Washington, D.C.
“One of the reasons we stuck with Adoptions Together is because of their ethical approach to adoption,” PJ Brennan told Capital News Service on Monday. “They make sure they are working with and counseling the birth family and not coercing them into a decision they don’t want to make.”
Nick Brennan added that Benji’s birth mother chose them because they were a gay couple. This was to honor her sister who also was gay and wanted children but passed away before having them.
“This was a way to honor her memory,” Nick said, adding the birth mother told them, “Everyone is entitled to have a family, if they want a family.”
Catholic Charities of Baltimore is a faith-based agency that no longer provides foster or adoption services in Maryland, but Christine Collins, the director of communications, said their agency continues to manage over 80 other social service programs throughout the state.
These include services for the homeless, food-insecure, elderly or disabled, and those seeking help with immigration or government benefits.
“You need what you need,” Collins said. “And we will try our best to give you the service that you need.”
However, FreeState Justice Executive Director Jeremy LaMaster told Capital News Service a Supreme Court ruling supporting a religious exemption to nondiscrimination mandates could affect more than just foster-care services.
“I think for me this is a troubling court case because the stakes are pretty broad,” he said. “Taxpayer-funded services (like foster care) should not discriminate. The exemption starts with providing foster care services, but there are other public services provided through religious programs.”
LaMaster said he was concerned about the effect on other private agencies providing government-funded services.
“If other agencies can opt out of nondiscrimination guidelines, this sets a challenging precedent for a whole swath of people in the state,” he said, indicating other protected groups could face discrimination due to exemptions as well.
Supreme Court Justice Amy Coney Barrett, in her first week hearing cases, asked a similar question during the Fulton hearing.
“What if there was an agency who believed that interracial marriage was an offense against God and, therefore, objected to certifying interracial couples as foster families?” she asked Catholic Social Services’ attorney. “Would they be entitled to an exemption?”
Windham responded no, but argued the government viewed each type of discrimination differently.
Graber disagreed, stating the government sets nondiscrimination rules for contracting agencies to follow.
“No one is saying, ‘CSS, you have to participate in this program,’” he said. “But once you participate, though, there are rules you must follow.”
Currently, FreeState Justice is working with state lawmakers to clarify these rules for Maryland, particularly as they pertain to vulnerable LGBT youth.
LaMaster said a proposed Youth and Families Protection Act, which is still in a very early drafting stage, seeks to “bolster gaps in Maryland’s code around human services”.
“Regardless of how (this case) goes,” he said. “There may be future similar court cases around religious exemptions for taxpayer-funded services. It’s really important at a state level that we’ve done the work so even if there is a federal policy change, Maryland policy does not and remains supportive of the LGBTQ community.”
The Rev. Tim Johnson of St. Andrew’s Episcopal Church in College Park, where the Brennans are active members, said he appreciates and can sympathize with the difficult position Catholic Social Services may have found itself in with this Supreme Court case.
“I can’t think of any population that is more vulnerable as children who don’t have families,” Johnson said. “That is as vulnerable as it gets. I commend Catholic Charities for their work on behalf of children and I believe in all my heart they are trying to do what is right and fulfill their mission. Where it becomes a challenge is when they are trying to fill that mission and uphold their social teaching around marriage and family.”
PJ and Nick Brennan also support the right of religious organizations to provide services in accordance with their beliefs, but like Johnson, they drew the line when it came to agencies that receive public funds.
“We’re not saying we’re going to shut down Catholic Charities,” Nick said. “We’re just saying use your own money if you want to discriminate.”