DOJ to Supreme Court: City of Philadelphia ‘Singled Out,’ ‘Targeted’ Faith-Based Foster, Adoption Agencies

Sharonell Fulton adoption Philadelphia
Photo Credit: Becket

WASHINGTON — The U.S. Department of Justice (DoJ) has filed an amicus brief with the Supreme Court in favor of a faith-based foster and adoption agency that lost its child placement relationship with the City of Philadelphia because of its protocol not to place children in the households of unmarried couples, which would include homosexuals. The DoJ believes that the agency was “targeted” by the City and “singled out” for discrimination because of its faith-based policies.

“The City’s investigation … ‘singled out’ religious organizations for ‘discriminatory treatment,'” wrote Solicitor General Noel Francisco. “It did so, moreover, even though there was ample reason to believe that secular organizations were considering protected criteria listed in the Fair Practices Ordinance as well.”

“That pattern of discriminatory enforcement violates ‘the First Amendment’s guarantee that our laws be applied in a manner that is neutral toward religion,'” he said, likewise stating elsewhere, “Philadelphia’s actions in this case burdened Catholic Social Services’ exercise of religion in a manner that the Free Exercise Clause prohibits.”

As previously reported, the matter began in 2018 when the Philadelphia Department of Human Services (DHS) decided to suspend its partnership with Catholic Social Services (CSS) after learning via an article in the Philadelphia Inquirer that the agency does not place children in same-sex households.

The issue was not about CSS initially, but a news lead surrounding Bethany Christian Services. Two lesbians told the Inquirer that after contacting Bethany, they were provided with referrals and advised that the organization had never placed children in homes without both a mother and father.

In reporting on the occurrence, the Inquirer decided to also reach out to Catholic Social Services to ask about its practices. They were informed that the entity likewise doesn’t place children with two men or two women — but had never been approached by anyone in a same-sex relationship.

Both organizations were consequently placed under investigation and further placements of any kind were halted. Philadelphia City Council also passed a resolution to look into DHS policy on working with agencies that decline to place children with homosexuals.

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While Bethany Christian Services decided to comply with Philadelphia’s non-discrimination ordinance in order to retain its contract, which means that it agreed to work with homosexual pairs seeking to foster or adopt children, Catholic Social Services sued the City of Philadelphia over the matter.

In July 2018, U.S. District Judge Petrese Tucker denied Catholic Social Services’ request for an injunction, including among her reasons, “in the context of foster care and adoption, DHS and Philadelphia have a legitimate interest in ensuring that the pool of foster parents and resource caregivers is as diverse and broad as the children in need of foster parents and resource caregivers.”

The Third Circuit Court of Appeals agreed with Tucker, stating that “[t]he City stands on firm ground in requiring its contractors to abide by its non-discrimination policies when administering public services.”

“And while CSS may assert that the City’s actions were not driven by a sincere commitment to equality but rather by antireligious and anti-Catholic bias …, the current record does not show religious persecution or bias,” wrote Judge Thomas Ambro on behalf of the three-judge panel. “Instead, it shows so far the City’s good faith in its effort to enforce its laws against discrimination.”

CSS decided to appeal to the U.S. Supreme Court, which agreed to take up the case.

While the Third Circuit found no religious bias in the matter, the DoJ conversely wrote in its recent brief to the nation’s highest court that it was apparent that the City of Philadelphia “impermissibly targeted religious organizations for enforcement of its newly articulated policies.”

It noted that DHS Commissioner Cynthia Figueroa testified that she had almost solely looked into religious agencies in examining compliance with Philadelphia’s Fair Practices (non-discrimination) Ordinance, “making just a single inquiry to a secular foster-care agency because the commissioner had  ‘good relationship’ with its chief executive officer.”

“City officials made no effort to determine whether other secular agencies perform home studies for everyone who requests them, or show preference for or against individuals who fall within particular groups,” the DoJ outlined.

It also pointed out that the City allows other adoption and foster agencies to place children with only certain people — and that the City itself takes race and disability into consideration when choosing families for placement.

“Other agencies focus their outreach only on foster families of particular ethnicities, and city officials themselves consider race and disability in deciding whether to place foster children with particular families,” the DoJ wrote. “Moreover, the City allows foster agencies to account for a potential foster parent’s mental or physical disability and familial status (including marital status) in deciding whether to approve that parent’s application.”

Therefore, the DoJ concluded, Philadelphia’s policies have “allowed City officials to make ad hoc value judgments that accommodate secular agencies’ views about how best to serve children (such as by giving preference to parents of a particular race) but that discount religious agencies’ views (including Catholic Social Services’ view about opposite-sex households).”

“And regardless, denying an exception here produces the very outcome that Philadelphia ostensibly seeks to avoid — it excludes foster families affiliated with Catholic Social Services not because of the best interests of the child, but because of the City’s disagreement with this religious organization’s view of same-sex marriage,” it noted.

The City of Philadelphia consequently targeted religious entities by not applying the same scrutiny to secular agencies and by denying Catholic Social Services an exemption that others would be entitled to under different circumstances.

“This court can and should resolve this case on the straightforward ground that the policies the City has invoked for excluding Catholic Social Services are subject to numerous exemptions — and yet the City has refused to grant such an exemption to accommodate Catholic Social Services’ religious views,” the DoJ wrote.

Read the amicus brief in full here. 

As previously reported, the U.S. Department of Health and Human Services (HHS) proposed a rule in November that would provide protections for faith-based foster and adoption agencies that otherwise might lose federal grant funds for operating in accordance with their religious convictions.

“The proposed rule represents the Trump Administration’s strong commitment to the rule of law — the Constitution, federal statutes, and Supreme Court decisions. These require that the federal government not infringe on religious freedom in its operation of HHS grant programs and address the impact of regulatory actions on small entities,” HHS stated in a press release.

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