Explainer: What you need to know about Fulton v. Philadelphia

November 4, 2020

Today, Wednesday, November 4, the Supreme Court will hear oral arguments in Sharonell Fulton, et al. v. City of Philadelphia, a critical case on the fate of faith-based foster care and adoption providers and, most importantly, vulnerable kids in need of a safe and loving home, throughout the country.

What is the case about? 

In 2018, a reporter from the Philadelphia Inquirer informed the City of Philadelphia’s Department of Human Services that two of its private foster care agencies, including Catholic Social Services (CSS), would not work with same-sex couples as foster parents. The city investigated the allegation, which it considered a violation of the City’s anti-discrimination laws. When the agencies confirmed that, because of their religious views on marriage, they would not work with gay couples—although no gay couple had ever attempted to partner with CSS—the department ceased referring foster children to them and demanded they change their religious practices or close down their ministries.

The petitioners in this case, Sharonell Fulton and Toni Simms-Busch, are two single, foster moms in Philadelphia who have partnered with CSS and, between the two of them, welcomed more than 45 foster kids into their homes. Their commitment to care for so many children over the years makes these women heroes. For more stories on these and other foster care heroes, check out freetofoster.com.

Due to the city’s actions against their Catholic agency, Fulton and Simms-Busch filed a lawsuit on behalf of CSS claiming the Philadelphia government had violated their rights under the First Amendment’s Free Exercise, Establishment, and Free Speech Clauses, as well as under Pennsylvania’s Religious Freedom Protection Act. The lawsuit asked the courts for an order requiring the city government to renew their contractual relationship while permitting CSS to maintain their religious convictions. In July 2018, the district court denied the request, and the case was immediately appealed to the Third Circuit Court of Appeals. However, the Court ruled against CSS and refused to protect the agency while its litigation proceeded to the U.S. Supreme Court. 

Why is this case important? 

For CSS in Philadelphia, the case will practically determine whether it will be forced to close its ministry in this great American city. If the ministry closes, foster moms like Sharonell Fulton, who is one among many of CSS’s faith-affirming partners, will lose the support and resources necessary to care for Philadelphia’s foster children. 

The outcome of the case will also reach thousands of faith-affirming foster and adoption agencies across the country. An unfavorable outcome for CSS may force other agencies into a similarly devastating choice, to either compromise their deeply held religious convictions or close down. Should CSS receive a decision from the Supreme Court clarifying their First Amendment protections, they can continue serving Philadelphia during its foster care crisis. Like the City of Brotherly Love, many states face foster family shortages, and so the closing down of faith-affirming foster care agencies is nonsensical and will leave many foster children without the loving homes they urgently need.

How has the ERLC responded? 

In an amicus brief filed at the Third Circuit alongside other religious freedom advocates including Alliance Defending Freedom, Family Research Council, and Focus on the Family, the ERLC argued for the importance of faith-based charities like the CSS playing an essential role in serving foster children. “When the government calls for foster-parents or other aid,” we noted, “it is religious communities that answer.” The brief further stresses the importance of religious agencies by mentioning various studies showing that religious families are more likely to receive children with special needs, who are less likely to receive help. These religious volunteers, the brief states, “provide recipients with a human touch that government and for-profit providers simply cannot match.” The brief closes its argument by stating the obvious and sad truth that the City has “placed the culture wars over children’s best interests and, in so doing… will cause real-world harm to children who have suffered too much already.”

Earlier this summer, in an amicus brief filed at the Supreme Court alongside a broad coalition of religious institutions, the ERLC argued that the Court’s decision in Employment Division v. Smith should be reconsidered because of its disastrous effect on religious freedom. The brief argues that the standard set by Smith’s precedent “misguides courts into routinely denying constitutional protection for even the most obvious and avoidable invasions of the free exercise of religion. … The time has come for Smith to be overruled.” The brief then situates this argument for a better religious freedom jurisprudence in the context of today’s case.

Record evidence shows that the City of Philadelphia targeted Catholic Social Services (CSS) for exclusion from the City’s foster care system because of CSS’s sincere religious beliefs and practices. Even if that exclusion does not qualify as religious targeting, Philadelphia’s treatment of CSS cannot withstand strict scrutiny. The City’s interest in ensuring a fair opportunity for same-sex couples to act as foster parents may be compelling, but the government cannot hope to demonstrate that removing CSS as a foster care provider is the least restrictive means of achieving that goal when twenty-nine other private agencies in the City offer foster care services to same-sex couples. Philadelphia has thus infringed CSS’s fundamental right to carry out its religious mission to serve vulnerable children. That determination violates the Free Exercise Clause and cannot stand.

The ERLC will follow today’s case closely and cover what happens in the oral arguments on the next episode of the Capitol Conversations podcast

ERLC legal intern Sam Jeon contributed to this article.