Those are the first words in a tweet thread from Becket attorney Lori Windham, and she’s right. This week Becket filed a cert petition in Sharonell Fulton v. City of Philadelphia. Fulton is appealing from a Third Circuit Court of Appeals opinion holding that Philadelphia did not violate the Free Exercise Clause of the First Amendment when it took punitive actions against Catholic Social Services because, in the words of the cert petition, “as a Catholic agency, CSS cannot provide written endorsements for same-sex couples which contradict its religious teachings on marriage.” Philadelphia took this action in spite of the fact that “CSS’s beliefs about marriage haven’t prevented anyone from fostering. ” As Becket explains:
Philadelphia has a diverse array of foster agencies, and not a single same-sex couple approached CSS about becoming a foster parent between its opening in 1917 and the start of this case in 2018. Despite this history, after learning through a newspaper article that CSS wouldn’t perform home studies for same-sex couples if asked, the City stopped allowing foster children to be placed with any family endorsed by CSS. This means that even though no same-sex couples had asked to work with the Catholic Church, the foster families that actually chose to work with the Church cannot welcome new children into their homes at a time when Philadelphia has an admittedly “urgent” need for more foster parents.
As is the case with multiple modern religious liberty cases, the issue isn’t whether LGBT individuals are excluded from the relevant market, industry, or program but whether the state may use its power to enforce ideological and religious conformity. Just as a ruling for Jack Phillips in Masterpiece Cakeshop meant that customers could still get their cakes, and Christians could still retain their rights of conscience, a ruling for CSS here would mean that LGBT families could still foster, and Catholics would be able to uphold church teaching.
Moreover, the facts of the case demonstrate that Philadelphia’s intolerance doesn’t just harm the Catholic Church, it harms the very people the foster program is designed to help.
A ruling for Catholic Social Services would mean that LGBT families could still foster, and Catholics would still be able to uphold church teaching. Rule against them, and the court drives CSS from fostering kids: https://t.co/bKF3Vm87fU
— David French (@DavidAFrench) July 26, 2019