Fulton vs. Philadelphia or Philadelphia vs. Kids at Risk?

November 25, 2020 by Robert Franklin, JD, Member, National Board of Directors


The U.S. Supreme Court recently heard arguments in the case of Fulton vs. City of Philadelphia.  It’s a case with the potential to significantly impact the provision of foster care to children at risk of abuse or neglect.

Now, on the surface, it’s a First Amendment free exercise of religion case, or at least the plaintiffs hope so.  The factual background is this: Catholic Social Services and its predecessors provide numerous services to the community and have for over two centuries.  Among those are the recruitment and vetting of foster parents.  The City of Philadelphia identifies children at risk of abuse or neglect and, in some cases, seeks foster parents for them.  When they do, they contact any of several private agencies like CSS who maintain lists of foster carers and, if a match for a child is found, then he/she will be placed with one of those families.  In short, CSS contracts for the provision of those services with the City of Philadelphia.

Or did, until recently.  That’s when the city discovered that CSS, being a Catholic organization, rejected all same-sex couples as possible foster parents.  The city claimed that violated city policies on same-sex marriage and so terminated CSS as one of its contractors for foster care services. 

CSS sued claiming that the city’s action violated its free exercise rights under the First Amendment.  The city seems to have advanced a variety of justifications for its stance against CSS, but eventually simply inserted into its regulations governing contracting with foster care providers a requirement that none discriminate on the basis of sexual preference.

I’m the furthest thing from an expert on the Free Exercise Clause, but I can certainly see that there’s no requirement anywhere that cities contract for services with any group or organization, religious or otherwise.  I can also see that governmental entities are constitutionally prohibited from discriminating on the basis of religion and, in the process chilling the free exercise thereof.  That’s particularly true in a situation such as foster care, in which the state has a monopoly on the provision of services.  If it doesn’t contract with you, no one does.  I can also see that the Free Exercise Clause was probably originally meant to be an individual right, not one of any religion generally.  That is, the framers of the Constitution surely intended the Free Exercise Clause to permit individual people to practice any religion they saw fit.  The distance between that and requiring a state to hire a Catholic organization to provide services to it is, to say the least, great.

But the kicker for me has nothing to do with either religion or the Constitution.  It has to do with kids.

Specifically, every state in the nation suffers a shortage – and in some cases as severe shortage – of qualified foster parents.  CSS has always done a good-enough job or finding, vetting and training foster parents whom it then provides to children in need.  Faced with a shortage of qualified foster parents, what does the City of Philadelphia do?  It reduces the number of foster parents available to it for placement of children in need.  Make sense?

After all, CSS is far from the only private provider of foster care services.  There are numerous others.  It’s the only one of those that doesn’t include same-sex couples on its list of appropriate families.  So, if a same-sex couple wants to foster kids, they can simply go to one of the other agencies.  And that appears to be what they have done.  No same-sex couple has ever approached CSS for certification as foster-care providers.

The simple fact is that there are more children in need of foster care than adults willing to provide it.  So, as a practical matter, it makes no sense for the City of Brotherly Love to reduce its supply of foster parents.  The city terminated its contract with CSS in March of 2018.  A matter of days later, it issued what it termed an “urgent plea” for 300 more foster homes.  At the time, CSS had a dozen such homes all vetted and ready to receive kids, but the city that had such an urgent need, used none of them, not because they weren’t appropriate homes, but because the agency offering them holds views on homosexuality that are rejected by the city.

Remember that the next time a state tells you how passionately devoted to children’s welfare it is.When it came to Kids vs. Political Posturing, the City of Philadelphia never hesitated.

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