What happened at the SCOTUS case on foster care and religious liberty?

November 6, 2020

On Wednesday, the Supreme Court of the United States heard oral arguments in Fulton v. Philadelphia, a crucial religious liberty case whose outcome could determine the ability of faith-based foster care and adoption providers to continue serving consistent with their convictions.

In Philadelphia, Catholic Social Services (CSS) has cared for children and families in need for over 200 years. Then 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. For more of the background on this case and the ERLC’s engagement and amicus briefs, see our previous explainer.

The plaintiffs in this case are two foster moms, Sharonell Fulton and Toni Simms-Busch, who simply want to care for vulnerable children in need. On the day of the arguments in Washington, Simms-Busch noted her gratitude that the justices “took our arguments seriously and seemed to understand that foster parents like me just want to provide loving homes for children.” Fulton added, “As a single woman of color, I’ve learned a thing or two about discrimination over the years—but I’ve never experienced the vindictive religious discrimination the City’s politicians have expressed toward my faith.”


The oral arguments began with an opening statement by Lori Windham, the Becket attorney representing Simms-Busch and Fulton, before receiving questions from the justices. In her opening statement, Windham argued there was no compelling reason for the city of Philadelphia to exclude Catholic Social Services from its foster care system.

Later, Neal Katyal, the attorney representing the city of Philadelphia, argued in his opening statement that this case is not about private activity or beliefs but about discrimination, as he defines it. When a foster care agency agrees to a government contract, his argument goes, the government has the right to enforce against sexual orientation discrimination rules.

Justices’ response

In his questioning, Justice Kavanaugh emphasized the government’s obligation to balance two constitutional rights: the freedom of religious exercise, protected by the First Amendment, and same-sex marriage, legalized by Obergefell v. Hodges. Kavanaugh said that when these two rights conflict with one another, the government should seek ways to accommodate both sides. He also warned against an absolutist position that refused to respect religious belief. In his view, the city of Philadelphia has not sought reasonable accommodations. Rather, the city is seeking confrontation.

Justice Kavanaugh then cited the fact that no same-sex couple has come to the Catholic agency to participate in its program and that CSS is open to referring same-sex couples to the other 29 agencies in the city.

Notably, Justice Breyer acknowledged he was bothered by the fact that no family has been turned down by the agency.

Justice Alito succinctly expressed his view of the case when he said, “If we are honest about what’s really going on here, it’s not about ensuring that same-sex couples have the opportunity to be foster parents. It’s the fact the City can’t stand the message that Catholic Social Services and the Archdiocese are sending by continuing to adhere to the old fashion view about marriage.”


In comments to Baptist Press about the oral arguments, Travis Wussow, ERLC’s vice president of public policy, said:

“The faith community forms the backbone of the child welfare system in our country that consistently answers the call when vulnerable children need help and a safe home. We were encouraged by the oral argument today and hopeful for a clear resolution of this case that allows faith-based child welfare agencies across the country to be able to serve children and foster families consistent with their convictions.”

With the foster care system burdened by the number of children in need, the government should not hinder the ability of agencies like Catholic Social Services to serve its community simply because of their religious beliefs. When the court decides this case, it is our hope that it not only protects religious liberty but also protects the ability of faith-based groups to continue serving the children in Philadelphia who need safe and loving homes.

ERLC policy intern Justin McDowell contributed to this article.