The Third Circuit Court of Appeals this week said city officials acted within their legal rights when they stopped referring children to a Catholic foster-care agency that refuses to certify same-sex couples as foster parents.
In March 2018, city officials stopped referring foster-care children to Catholic Social Services after published reports disclosed the agency wouldn’t place children with same-sex couples.
City officials said CSS’ policies violate the city’s Fair Practices Ordinance, which bans LGBT bias in public accommodations.
But, two months later, CSS filed suit against the city, claiming violations of its constitutional rights to freedom of speech and religion.
CSS asked U.S. District Judge Petreses B. Tucker to issue a preliminary injunction ordering the city to renew its contract despite its unwillingness to comply with the city’s nondiscrimination requirement. Tucker denied that request in July. On April 22, the Third Circuit Court of Appeals upheld Tucker’s ruling.
In a 50-page opinion, a three-judge panel of the court said CSS failed to demonstrate that city officials violated its constitutional rights.
“The city stands on firm ground in requiring its contractors to abide by the city’s nondiscrimination policies when administering public services,” wrote the panel, consisting of judges Thomas L. Ambro, Marjorie O. Rendell and Anthony J. Scirica.
“The question in our case is whether CSS was treated differently because of its religious beliefs,” they wrote. “Put another way, was the city appropriately neutral — or did it treat CSS worse than it would have treated another organization that did not work with same-sex couples as foster parents but had different religious beliefs? Based on the record before us, that question has a clear answer: no. The city has acted only to enforce its nondiscrimination policy in the face of what it considers a clear violation.”
The panel also rejected CSS’ allegation that it was targeted for anti-Catholic persecution.
“The current record does not show religious persecution or bias. Instead it shows so far the city’s good faith in its effort to enforce its laws against discrimination,” the panel stated.
According to court testimony, CSS received about $1.7 million annually from the city for foster-care services prior to referrals being halted.
CSS currently provides services for about 97 foster children. The city contracts with 29 other agencies to provide foster-care services for about 5,700 children.
The city also provides about $26 million annually to CSS for services apart from foster care.
“The city has maintained its other relationships with CSS and has merely insisted that, if CSS wants to continue providing foster care, it must abide by the city’s nondiscrimination policy in doing so,” the judges wrote. “There is simply no evidence that this is a veiled attempt to coerce or impose certain religious beliefs on CSS.”
Lori H. Windham, an attorney for CSS, blasted the ruling, saying politics were prioritized over children.
“This ruling is devastating to the hundreds of foster children who have been waiting for a family and to the dozens of parents working with CSS who have been waiting to foster a child,” Windham said in a statement. “We’re disappointed that the court decided to let the city place politics above the needs of kids and the rights of parents. But we will continue this fight.”
Windham couldn’t be reached for comment regarding whether CSS would appeal to the U.S. Supreme Court.
During oral arguments in November, Windham said if CSS doesn’t receive additional referrals from the city, it may have to close its foster-care program.
She also contended that it’s wrong for the city to reject CSS’ offer to refer same-sex couples to other foster agencies for child placement. Such referrals, she said, wouldn’t constitute illegal discrimination against a same-sex couple; instead, CSS would be exercising its constitutional rights.
But city attorneys countered that it would be unacceptable for CSS to refer same-sex couples to another agency — a process that would stigmatize the LGBTQ community and deny foster children loving, affirming homes.
To allow CSS to behave in that manner would convey to LGBTQ youth that their civil rights won’t be respected when they reach adulthood, city attorneys said.
Also during oral arguments, Ambro suggested to Windham that CSS compromise by placing children with qualified same-sex couples while clarifying that it continues to oppose same-sex marriage. He noted that another foster agency, Bethany Christian Services, settled its differences with the city in such a manner. However, Windham said the compromise would be unacceptable for CSS.
Pennsylvania state law requires foster agencies to consider a variety of factors before approving a foster parent, including whether the candidate has the ability to nurture and supervise a child, whether the candidate’s home is safe and appropriate and whether he/she has supportive ties within the community. Pennsylvania doesn’t require an inquiry regarding the sexual orientation of a prospective foster parent.
Leslie Cooper, deputy director of the ACLU’s LGBT and HIV Project, praised the Third Circuit’s ruling. During oral arguments, Cooper argued on behalf of the Support Center for Child Advocates and Philadelphia Family Pride, intervenors in the case that advocate on behalf of children in the city’s foster-care system and families headed by same-sex couples who seek to care for them.
“Religious liberty is one of our most fundamental freedoms, and it protects all of us from government interference with whether, when, and how we practice our faith,” Cooper said in a statement. “It does not entitle taxpayer-funded child welfare agencies to impose their own religious eligibility criteria on important government programs. The city of Philadelphia recognizes the need to maximize the number of families available for children in foster care and has every right to insist that the agencies it hires to find families for these children accept all qualified families. Nothing in the Constitution puts the religious beliefs of these agencies ahead of the needs of the children in their care.”
City officials also heralded the
ruling. Mayor Jim Kenney said in a statement: “I am grateful for the court’s careful analysis of the case and its thoughtful decision. Our policy ensures that same-sex couples do not face discrimination as they seek to offer loving homes to Philadelphia children in need of foster care. At the same time, the policy safeguards religious liberties. We are proud that Philadelphia is a welcoming, inclusive city that values the diversity of its residents. This policy is the embodiment of those values, and we are pleased that the court has now upheld it.”
City Solicitor Marcel Pratt added: “We could not be more pleased with the court’s decision on such an important issue for the city of Philadelphia. The decision also recognizes that the city’s nondiscrimination laws and policies are neutral and generally applicable, and do not violate religious liberties.”
Department of Human Services Commissioner Cynthia Figueroa urged LGBT individuals to consider serving as foster parents.
“We want all individuals who are able to provide safe, loving and welcoming homes to consider fostering,” Figueroa said. “The court’s decision means that prospective foster parents will not be unlawfully turned away from our provider agencies and will allow us to best serve the children and youth in our care.”
Stephanie Haynes, executive director of Philadelphia Family Pride, echoed those sentiments.
“We are grateful that the appeals court understood the lack of legal merit in the challengers’ case. As a result, families like those we represent can provide safe, caring homes to children in the foster system without fear of discrimination. Philadelphia needs more loving, qualified parents for foster children. That’s what Philadelphia’s nondiscrimination policies make possible.”
Ten states permit state-licensed child-welfare agencies to refuse to place and provide services to children and families — including LGBT people and same-sex couples — if it conflicts with their religious beliefs, according to the Movement Advancement Project. Those states are Alabama, Kansas, Michigan, Mississippi, North Dakota, Oklahoma, South Carolina, South Dakota, Texas and Virginia.