July 30, 2020

Religious Liberty After Bostock

By Russell Shaw *
Sharonell Fulton has fostered more than 40 children through Catholic Social Services. Photo courtesy of Becket.
Sharonell Fulton has fostered more than 40 children through Catholic Social Services. Photo courtesy of Becket.

Does the Catholic Church have a right to follow its convictions about sexual morality in its own institutions without being penalized by government? In its June decision declaring “gay” and “transgender” to be protected categories under federal law barring sex-based discrimination, the Supreme Court left that question unanswered.

But probably not for long.

Sometime next fall – the date hasn’t been announced yet – the court will hear a case called Fulton v. Philadelphia in which the Archdiocese of Philadelphia challenges  the city’s action in forcing Catholic Social Services out of foster care because the Catholic agency won’t place foster children with same-sex couples.

The facts in the case are obviously different from those in the Supreme Court’s recent LGBTQ decision on job discrimination (Bostock v. Clayton County). But the clash of interests involved was clearly foreseen by Justice Neil Gorsuch in his majority opinion in Bostock. Conflicts between religious liberty and LGBTQ claims, he wrote, raise “questions for future cases” that the Supreme Court would soon face.

The heart of these conflicts is clear in the Philadelphia dispute. Catholic Social Services, an arm of the local archdiocese, has been involved in foster care since 1917, long before the city became involved. But today the city controls foster care and contracts with private agencies to recruit foster parents and place children. In 2017-2018 the Catholic agency was responsible for 120 of these youngsters.

Before the present conflict, no same-sex couple had asked Catholic Social Services to be allowed to provide foster care. But after the Philadelphia Inquirer ran a story on the Catholic agency’s policy, the city responded by pressuring it to drop the policy and, when that didn’t work, refused to send it children for placement, thus forcing it out of the field. The dispute landed in court, with the 3rd Circuit U.S. Court of Appeals ruling for the city – a decision the Supreme Court is being asked to reverse.

The issues in this case reach far beyond Philadelphia. In asking the Supreme Court to accept it for review, Catholic Social Services put it like this:

“Here and in cities across the country, religious foster and adoption agencies have repeatedly been forced to close their doors, and many more are under threat. These questions [about the religious liberty rights of church-related agencies] are unavoidable, they raise issues of great consequence for children and families nationwide, and the problem will only continue to grow until these questions are resolved by this court.”

The Supreme Court’s June decision affirming LGBTQ rights under anti-discrimination law isn’t the only one with a potential bearing on the Fulton case. No less relevant, one would think, was its ruling two weeks later supporting the Little Sisters of the Poor in refusing to pay for contraception as part of the health insurance coverage of employees in their homes for the elderly. And, significant perhaps, the Supreme Court was there reversing a decision of the 3rd Circuit U.S. Court of Appeals – the same court that ruled against Catholic Social Services in the Philadelphia case.

However this dispute turns out, the larger pattern of conflict and confrontation at work here mirrors efforts – backed by most national media and the many politicians who pander to the dictates of misnamed progressivism – to advance LGBTQ interests in an ever-widening circle of settings. The Supreme Court helped set the machinery in motion in its 2015 decision legalizing same-sex marriage. Then came last month’s Bostock ruling. Will Catholic foster care be next? And what comes after that?

Russell Shaw is the author of more than twenty books, including three novels and volumes on ethics and moral theology, the Catholic laity, clericalism, the abuse of secrecy in the Church, and other topics. He has also published thousands of articles in periodicals, among them The Wall Street Journal, The Washington Times, L’Osservatore Romano, America, Crisis, Catholic World Report, The National Catholic Reporter, and many others. From 1967-1987 he served as communications director for the U.S. Catholic bishops and from 1987-1997 was information director for the Knights of Columbus. He lives in Washington, D.C.

* Catholic News Agency columns are opinion and do not necessarily express the perspective of the agency.

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