A federal judge has swept away claims of religious discrimination by plaintiffs including archdiocesan Catholic Social Services and ruled the church agency must provide home assessments for same-sex couples wishing to provide foster care for at-risk children in Philadelphia.
CSS leadership testified in a Philadelphia district court that doing so would amount to church approval of lesbian, gay, bisexual and transsexual relationships.
Catholic teaching emphasizes respect and compassion for LGBT persons but opposes homosexual acts as contrary to God’s plan for human sexuality, which is reserved only for marriage between one man and one woman.
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In a ruling late Friday afternoon, July 13, Judge Petrese B. Tucker denied a temporary restraining order that CSS had sought to resume referrals of foster children from the city’s Department of Human Services. DHS had frozen intake of new foster cases with CSS last May, no longer referring some of the 6,000 city children in need of care to CSS-affiliated foster parents.
(See a related story: Lawmaker urges protecting religious liberty of adoption, foster agencies)
Three of those foster mothers, Sharonell Fulton, Cecilia Paul and Toni Lynn Simms-Busch, had joined CSS in a federal lawsuit claiming religious discrimination by the city against the Catholic agency.
Cecilia Paul (center), a foster mother through Catholic Social Services for more than 40 years, enjoys the closeness of family in her home in this 2015 file photo, with daughter Taylor (left) and son Jamil, both of whom she cared for as a foster mother before adopting them. Also brightening the home is an infant boy (lower right). (Sarah Webb)
Judge Tucker in her 64-page decision ruled that the plaintiffs failed to present evidence of such discrimination, and that the contract requiring CSS to work with same-sex households under the city’s fair practices ordinance was binding.
Over three days of testimony in late June, witnesses for CSS and DHS officials explained how 30 state-approved foster-care agencies, including CSS and the nonprofit Bethany Christian Services, are required to perform “home studies,” or assessments to certify the suitability of prospective foster parents.
James Amato, archdiocesan secretary of Catholic Human Services and head of CSS, testified that his agency’s long-standing practice was essentially to sidestep the issue of a Catholic agency potentially certifying a home led by a same-sex couple by passing on the task on to one of 28 other secular foster care agencies in Philadelphia.
DHS suspended that practice for CSS in May and ceased referring new cases to it. Although the Catholic agency attempted to negotiate an exemption to continue referring home-study assessments for same-sex households to other secular agencies, DHS refused and demanded adherence to the city’s fair practices ordinance requiring CSS to perform the assessments for all prospective foster parents, regardless of their relationships.
Unable to place any of the children through CSS, the agency led the lawsuit to seek relief from the courts.
Representing the plaintiffs were lawyers from the Becket Fund, a Washington, D.C.-based nonprofit that specializes in cases concerning religious freedom.
“Foster children deserve loving homes, and foster parents like (Sharonell) Fulton and (Cecilia) Paul have been waiting with open arms to welcome them,” said Lori Windham, senior counsel at Becket. “But the city has put politics above the children, and today the court allowed the city’s discriminatory actions to continue — a decision we will immediately appeal.”
Becket filed the appeal July 16 in the Third Circuit Court of Appeals in Philadelphia and moved for an injunction to resume foster-care placements to CSS, pending a new ruling on the case.
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During the evidentiary hearing June 18-21, Becket lawyers emphasized the high quality of care provided by Catholic foster parents and the support they receive from CSS, in accordance with its mission to offer optimum care for all children in need.
The lawyers pointed to past public comments by Mayor Jim Kenney, himself a Catholic, that they characterized as hostile to the Philadelphia Archdiocese.
Plaintiffs’ counsel charged that by denying CSS an exemption according to past practice, DHS was targeting CSS “purely based on its religious beliefs” in violation of the U.S. Constitution’s First Amendment and Pennsylvania’s Religious Freedom Act.
Despite the arguments, Judge Tucker cited numerous legal precedents and dismantled each of the claims of discrimination.
Saying the plaintiffs “rely too heavily” on four comments by Kenney “to draw a sweeping conclusion that CSS has suffered impermissible hostility at the hands of the mayor,” Tucker added there was no evidence that he targeted CSS, and at any rate, his comments “are irrelevant to this case and cannot support plaintiffs’ claim of religious hostility and intentional targeting.”
Tucker also wrote that the assertion by CSS that the city denied its exemption for home-study assessments of same-sex households as a sign of religious discrimination had no merit. The referrals to other agencies “amount to CSS’s refusal to serve that same-sex couple,” a violation of the contract, in the judge’s view.
Because the city froze intake for referrals to CSS and for Bethany Christian Services, Tucker cited this as evidence DHS showed no targeting of the agencies based on religious beliefs and practices, since Bethany is not an agency of the Archdiocese of Philadelphia as CSS is. She wrote that no evidence supported the plaintiffs’ claim to a violation of the establishment clause of the First Amendment of the Constitution.
She also dismissed the claim to a violation of Pennsylvania’s religious freedom law. Presuming that providing foster care constitutes a fundamental religious exercise by the Catholic agency under the law, Tucker ruled that the CSS ministry is not “substantially burdened” because it “is not the case” that CSS, if it were to certify a same-sex couple, would be extending “its religious approval of same-sex relationships in contravention of Catholic teaching about marriage.”
Arguing that certifying a divorced Catholic person “would not suggest that CSS approved of divorce as a religious matter,” Tucker ruled that CSS “was hired to provide a scope of services to the citizens of Philadelphia that is narrower than CSS contends.” The contract only requires CSS to “certify prospective foster parents as meeting state guidelines for foster care.”
For those reasons, Tucker ruled that certifying same-sex couples “does not constitute a substantial burden on CSS’s religious exercise of providing foster care to children.”
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CSS has given no indication it will at any time perform home studies for same-sex couples, but Bethany Christian Services has agreed to do so under terms of the contract with DHS.
While the case now heads to the federal appellate courts, CSS’ foster care program appears in jeopardy if it does not comply with the ruling to certify same-sex foster parents.
As it has done for more than 100 years, CSS continues providing foster care to about 127 children a day with more than 100 families in Philadelphia. That care is supported with $3.8 million annually from CSS with its own private funds in addition to $1.7 million annually in per diem payments from DHS.
But without new referrals from the city, CSS foster care services will likely close “within a matter of months” with layoffs of 15 staff persons beginning perhaps as early as mid-July, Amato said in his testimony.
The expertise and continuity of the staffers, each of whom has served for some 30 years and who represent the strength of the program “would be gone, and rebuilding the trust of the clients would take years,” even if the program were to be reestablished, Amato said.
In recent years similar Catholic foster programs in Boston, San Francisco, the District of Columbia and Illinois have prompted Catholic agencies to stop providing adoption or foster care services rather than violate church teaching and place children with same-sex or unmarried heterosexual couples.
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Catholic citizens of the United States have every right constitutionally, as well as a moral imperative, to demand that their government not contribute their tax dollars towards activities that are judged as morally evil under the teachings of the Catholic Church. The two most prominent examples are abortion and artificial contraception. Tax dollars should not be used to pay for abortions or for providing artificial contraception. There is nothing like a public consensus in the United States on the morality of abortion, and there is a much smaller, but strongly felt belief in the moral evil of artificial contraception. Absent such a public consensus, public tax dollars cannot, and should not be used to implement abortion or artificial contraception. To do so, is to force Catholic citizens to violate their consciences by the mere act of paying taxes.
The corollary to this unassailable right to objecting to the use of tax dollars for morally evil purposes is that a social agency of the Catholic Church has no right to impose Catholic moral teaching on the use of public tax dollars in the administration of social programs. Otherwise, Catholics are forcing their fellow taxpayers – who do not adhere to Catholic moral teachings – to violate their consciences, if for example they think that to discriminate on the basis of sexual orientation in the determination of parental competency is itself morally evil.
The logical and moral response of a Catholic social service agency when the government requires that it administer public tax dollars in a way that is contrary to Catholic moral teaching is to decline those public tax dollars and to withdraw from administering a public program that calls for the violation of Catholic moral teaching. In the case under discussion, Catholic Social Services could establish a private program using only funds raised voluntarily from Catholics to place children exclusively with heterosexual couples, heterosexual marriage being a criterion of the Church’s teachings for the determination of parental competency.
Catholic social services and the Catholic Church have no unfettered legal right to require contributions from public tax funds. Such a requirement would be a clear violation of the Doctrine of the Separation of Church and State. There is no basis whatsoever to claim discrimination against Catholics because the government is requiring administration of public dollars in a manner which is consistent with existing laws that recognize non-heterosexual marriage as being morally equivalent and equally valid as heterosexual marriage.
Catholics can advocate for laws that are consistent with Catholic moral teachings, but they cannot claim discrimination when the government requires the administration of social programs that are funded with public tax dollars, in a manner consistent with existing laws, and non-heterosexual marriage is recognized under existing laws.
Vincent Tkac, Esquire
The Catholic University of America – ‘73
Columbus School of Law (CUA) – ‘76
If CSS received financial aid from the city then there might be reason – but since CSS is fully funded by the Archdiocese there is no legitimate reason for the city to force their agenda. Politicians who call themselves Catholic yet publically behave and support policies contrary to church teaching – such as abortion and homosexuality – should be admonished by the bishops of their respective areas and excommunicated if they continue.
Catholic Social Services is not fully funded by the Archdiocese of Philadelphia. In any given year in this century, at least 50% of the programs of CSC are kept afloat with federal tax dollars, and another good chunk of change comes from the non-sectarian United Way Campaign.
Programs funded solely from private donors should be compatible with the moral teachings of the Catholic Church. Once any institution, whether it be a social service agency, a university or a hospital, accepts the taxpayer’s money, that institution is bound to apply those funds in a manner consistent with the laws of the land. If the institution finds itself in moral conflict, then it should not accept the taxpayer’s money. The Catholic Church is free to run a parallel program using solely “Catholic dollars.”
The allocation of taxes, from the government, particularly the federal government, to private religious institutions, whether they be a social service agency, a university or a hospital, always carries with it two potential problems, problems with both a political and a moral dimension. First, there is a threat to the separation of church and state. Second, there is the potential contention between faith-communities for the allocation of funds. Is Catholic Social Services getting more than its fair share of funds, as opposed to – let’s say for example – Jewish Social Services? Both of these problems are what the Founding Fathers were trying to avoid with the Establishment Clause and the Free Exercise Clause of the First Amendment.
The meta-problem is that Catholic social service agencies, universities and hospitals have become dependent on government funds, particularly federal tax dollars. This dependency, like all dependencies – drug addiction for example – is morally corrupting. The answer for institutions under Catholic auspices is to just say “no.” The leadership of such institutions under Catholic auspices will say that the “just say no” response is totally impractical. But that response is a merely an indication of the depth of the dependency on government dollars to promote what should solely be religious works. The alternative to the “just say no” strategy is to contrive and promote specious legal arguments to compromise the strict interpretation of the Establishment Clause and the Free Exercise Clause, as exemplified by the Becket Fund for Religious Liberty.
Mayor Jim Kenney, himself a Catholic,…Correction: Should say: characterizes himself as a Catholic… This mayor appears far from catholic, unless of course, it’s a Biden-cafeteria type..
The Archdiocese should cease all business relations with the City of Philadelphia.
As a catholic I find Judge Tuckers decision goes against the teaching of our Religion. Basicly saying that she has the right to say what the Dioceses of Philly can do concerning adoption. This goes against the First & 2nd Ammendments to our Constitution. Hope this decision is revoked.