Supreme Court Protects Faith-Based Adoption, For Now | Opinion

Cities that want to forbid religious organizations from participating in public programs have a new obstacle to overcome. The Justices of the U.S. Supreme Court—all nine of them—agreed in Fulton v. City of Philadelphia that the City of Brotherly Love acted unconstitutionally when it barred Catholic Social Services from helping place foster children in loving homes.

Faithful Catholics have acted to meet the needs of Philadelphian orphans since at least 1798. Catholic Social Services, motivated by its religious beliefs, partnered with Philadelphia to match the city's needy children with foster parents. Only recently did Philadelphia become uneasy with this relationship. That is to say, Philadelphia suddenly came to the conclusion that to allow Catholic social workers to receive city grants or contracts to help foster children would violate the Constitution because Catholics maintain traditional religious beliefs about sexuality.

A unanimous Supreme Court thought otherwise. "The refusal of Philadelphia to contract with [Catholic Social Services] for the provision of foster care services unless it agrees to certify same-sex couples as foster parents," explains Chief Justice John Roberts, "cannot survive strict scrutiny, and violates the First Amendment."

In other words, the Court held that the city of Philadelphia chose to discriminate against Catholic Social Services because the agency could not morally agree to Philadelphia's version of nondiscrimination. The First Amendment demands that our government act neutrally toward religion; Philadelphia did not. Rather, city leaders proceeded "in a manner intolerant of religious beliefs or restrict[ed] practices because of their religious nature," Chief Justice Roberts says.

Of course, over the agency's previous 50 years of working with the city of Philadelphia, this has never been a concern. Not once. Yet, the city government was unbending—in order for Catholic Social Services to help foster kids in the city, it must kiss the "nondiscrimination" ring. It must divest itself of two-millennia-old church doctrine and adopt the ideology of the city of Philadelphia, or get out of the business of city-sanctioned foster care.

Punishing religious organizations for acting consistently with their sincerely held religious beliefs is wrong. Government officials should not be so intolerant of religious convictions as to dismiss believers from public participation for refusing to toe an ideological line drawn by bureaucrats. For now, at least in Philadelphia, they cannot.

Chief Justice John Roberts
U.S. Supreme Court Chief Justice John Roberts arrives to attend President Joe Biden addresses a joint session of Congress, on April 28, 2021 in Washington, DC. On the eve of his 100th day in office, Biden spoke about his plan to revive America’s economy and health as it continues to recover from a devastating pandemic. He delivered his speech before 200 invited lawmakers and other government officials instead of the normal 1600 guests because of the ongoing COVID-19 pandemic. Melina Mara-Pool/Getty Images

But this decision may not fully resolve the conflict. Whether it is Catholic Social Services, cake bakers, florists or other religious citizens that run up against progressive demands, Fulton does not mean religious freedom is secured forever. Why? "The creation of a system of exceptions under the contract," says Chief Justice Roberts, "undermines the City's contention that its nondiscrimination policies can brook no departures."

That is, all nine Justices of the nation's highest Court agreed at least in this: if a city maintains that it can (without much explanation) exempt some from the requirements of nondiscrimination, but deny such an exception to a religious institution, absent a compelling justification, it discriminates and violates the First Amendment.

While that consensus is helpful to religious liberty, Justice Samuel Alito notes in his concurring opinion, the "decision might as well be written on the dissolving paper sold at magic shops." Philadelphia, and cities like them, are determined to issue religious institutions an ultimatum: violate religious doctrine to receive the blessings of progressive governments or abandon your religious mission altogether.

Progressive bureaucrats will act quickly, Justice Alito predicts, to end the possibility of exceptions. When they do, religious institutions will once again face an impossible choice: worship at the altar of progressive nondiscrimination ideology or desert the very religious convictions that motivate their acts of service.

Still, it is notable that a unanimous Court—including three Justices appointed by President Donald Trump and two appointed by President Barack Obama—agreed on some level that by enforcing nondiscrimination ordinances, government officials are themselves discriminating, in violation of the First Amendment's guarantee to the "free exercise of religion."

For now, the Court ensured that religious adoption agencies like Catholic Social Services can continue their centuries-old work serving families and children without suffering government discrimination for their belief that the best home for a child includes a mother and father. That alone is a tremendous victory for religious liberty.

Jeremy Dys (@JeremyDys) is Special Counsel for Litigation and Communications for First Liberty Institute, a non-profit law firm dedicated to defending religious freedom for all Americans. Read more at FirstLiberty.org.

The views expressed in this article are the writer's own.