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Catholic Foster Care in Court

November is National Adoption Month. So, it is fitting that today the Supreme Court will hear arguments in a case to determine whether religious foster care and adoption agencies may continue to serve vulnerable children and families as they have done in this country since before its founding.

That case, Fulton v. City of Philadelphia, arose in 2018 when the City of Philadelphia stopped allowing foster children to be placed with families who work with Catholic Social Services (CSS) and refused to renew its contract unless CSS abandoned its religious beliefs regarding marriage.  As a Catholic scholar who focuses on law and the family and who has served as a foster parent and adopted four children, I participated in an amicus brief [1] in Fulton to defend the rights of religious institutions like CSS. Here are some of its arguments.

 Fulton has tremendous legal significance [2]. Religious liberty, our “first freedom,” is more than the freedom to worship in private. Rather, it involves the whole “free exercise” of religion, that is, the right to live out faith freely in the public square. The child welfare system depends on the voluntary participation of citizens who welcome children in need into their homes. And it is often religious beliefs that motivate foster and adoptive parents to do so. This case provides an opportunity for the Court to articulate whether (and how) the scope of religious freedom protects such religiously motivated public service.

Fulton bears upon whether religious institutions may participate in social services, especially in those contexts where such services have been almost wholly absorbed by the state, whether by licensure, regulation, or funding. Religious institutions pioneered the field of child welfare long before anything like “foster care” became a governmental activity. They have remained essential partners ever since.

But the lesson of Boston, Washington D.C., San Francisco, New York, Illinois, and now Philadelphia is that once the government becomes the gatekeeper to a social service, religious institutions are allowed to participate only with the permission of the state. Fulton gives the Court the opportunity to clarify the limits of when the government may wield its gatekeeper role to target religious beliefs it doesn’t like.

Many court watchers are optimistic that the justices will decide rightly in Fulton. Still, this is a moment for persons of faith to reflect about such existential threats to participation in civic and social life. Law is a teacher, and in many areas what it teaches has a profound impact on our understanding of the human person and the family.

Law shapes and forms the moral sensibilities of citizens in ways that impact attitudes toward Catholic teachings. As public morality shifts, religious freedom has been placed on the defensive, despite its status as a fundamental legal right, a good in itself that promotes human flourishing.


As that shift happens, people of faith are placed in the position of begging courts for permission to continue to act in ways consistent with their beliefs. Beliefs that the law and the culture have now deemed wrong – and in many cases, not simply wrong, but the equivalent of racism or bigotry. Religious freedom is the last shield to defend what many now find to be indefensible beliefs.

Religious people must do a better job to explain publicly why their beliefs are not thinly disguised excuses for discrimination or bigotry, but rather embody truths about the human person, marriage, and the connection between sex and children. Above all, they must demonstrate that our beliefs are fundamentally about the call to make ourselves a gift of love to one another.

True, we should defend the rights of faith-based institutions to engage in child welfare because they are good at what they do. In virtue of their centuries-long experience, they excel in recruiting and sustaining foster families and in providing community, “wrap-around” support services to children and families, who often have serious physical and emotional needs.

But we must also recognize that such organizations are good at what they do because they are motivated by religious beliefs and that those beliefs embody certain goods, not prejudices. In the child welfare context, CSS’s policies are not exclusions aimed at discriminating against same-sex couples but rather flow from of a much broader theological understanding about marriage and the family. And, we must point out that CSS is not unique in being motivated by such beliefs.

As the amicus brief stated, “every system of belief – whether religious, atheistic, or secular – contains some kind of philosophical understanding of the nature of the human person and human sexuality. In the child welfare system, this is manifest in the reality that every organization, whether secular or religious, agrees that children need and deserve healthy, stable families. In our pluralistic society, there are a variety of beliefs (again, both religious and secular) about what conditions and family structures make for a healthy, stable family.”

In this context, “the belief that children flourish best with both a mother and a father is not a negative discriminatory principle, but rather an expression of religious understanding about the very nature of the family and the resultant rights of the child. [U]nsurprisingly, many people of faith have religiously informed views on such matters, and those views are embodied in the child welfare work that they do.”

Fulton will have profound importance in the area of child welfare. But its significance to the broader religious contribution in every sphere of human welfare cannot be overstated. If the Court fails to protect Catholic Social Services, our amicus brief argues, such a decision will have repercussions far beyond the harm to vulnerable foster children: “Allowing the City of Philadelphia to exclude Catholic Social Services from the child welfare system sends an ominous message to all people of faith serving in any social service ministry that interacts with the state (whether it be education, health care, prison ministry, or anti-poverty work): fall in line, or get out of our way.”


*Image: The Appearance of the Artist’s Family by Marc Chagall, 1947 [Palais des Beaux-Arts, Lille, France]

Elizabeth Kirk, a new contributor, is a research associate at The Catholic University of America Columbus School of Law, where she focuses on child welfare and adoption law and policy.