Did city violate the religious freedom of Catholic Social Services when it froze its foster care contract?

Cynthia Figueroa, commissioner of the Department of Human Services, enters Federal Court with Deputy City Solicitor Benjamin Field. The city is defending its suspension of foster care referrals to Catholic Social Services. The agency has sued alleging religious discrimination.

A federal judge has said she will rule early next month on a Catholic organization’s contention that the city violated its religious freedom when it suspended its contract to provide foster care because the agency will not work with same-sex couples.

The city Department of Human Services froze foster-care referrals to Catholic Social Services (CSS) in March after learning of the agency’s policy. The agency does work with LGBTQ children. Catholic Social Services responded with a lawsuit in May, contending the city targeted it because of its beliefs and violated its religious freedom by preventing it from work it considers part of its ministry.

The organization argued in court that the city is placing at risk children who need homes, and asked U.S. District Judge Petrese B. Tucker for a temporary restraining order so it can resume its work.

“They’re not asking to prevent anyone from becoming a foster parent,” said Lori Windham, attorney with Becket Law, representing CSS in court. “They are only asking to provide referrals to an agency who is a good fit for whoever comes to them.”

Over three days of testimony, the city argued that CSS  had violated its contract with DHS as well as the city’s Fair Practices Ordinance, which forbids municipal contractors from discriminating against people because of their sexual orientation. Court testimony disclosed that CSS also requires prospective foster families to provide letters from a member of the clergy of any denomination. City attorneys said that requirement also likely violates Philadelphia law.

“CSS has entered into a contract with the city and wants to change a term of that contract,” Eleanor Ewing, chief deputy city solicitor, told the judge. “We cannot allow religious exemptions. This is our job, our work, DHS’s work, and the city cannot pick and choose and favor one religion over another.”

The case arose from an incident last year in which a same-sex couple, interested in fostering, said they were turned away from Bethany Christian Services because they were gay. Their story appeared in a March article in the Inquirer and Daily News that also noted that both Bethany and CSS had policies preventing staff from working with same-sex couples. There is no known case of a same-sex couple being turned away from CSS.

The city said it was unaware of the discriminatory policies and froze foster-care referrals to both agencies following the report. Bethany has since changed its policy and will resume work with the city, according to court testimony.

In court this week, Windham argued that by requiring CSS to abandon its religious beliefs in order to care for kids, the city was infringing on its religious freedoms. Windham said biases against the church reached “the highest levels of government.” She read excerpts from Mayor Kenney’s personal Twitter account before he was mayor.

“The Arch don’t care about people,” Windham read from a 2014 Kenney tweet. “It’s about image and money. Pope Francis needs to kick some ass here!” A second tweet from 2012 read:  “I could care less about the people at the Archdiocese.”

CSS also claimed the city is selectively enforcing its policies. If approached by a same-sex couple, CSS has said it would refer the couple to one of 28 other foster-care agencies. DHS allows referrals between agencies for other reasons, for example if prospective parents want to foster a child with specialized medical or language needs that the agency they contacted didn’t provide.

The city said it expects agencies to work with any parent who comes to them.

“Philadelphia has a responsibility to serve all citizens, and this sends a signal, a very strong signal, to that community that their rights aren’t valid,” DHS Commissioner Cynthia Figueroa testified. “More importantly, when you think about youth that are served, they will become adults at some time, so you’re sending a signal to them [that] while we may support you now, we won’t support your rights as an adult.”

Harm to children

CSS has 26 certified available homes and anticipates that number will rise to 35 by the end of the month when the contract with the city expires. Cecilia Paul, a foster parent through CSS for 46 years, who is also a plaintiff in the case, testified she’s never had an empty house for this long.

Camera icon Courtesy of Becket Law Firm
Sharonell Fulton, one of three foster parents with Catholic Social Services who testified this week, holds a photo of some of the children she has fostered. Fulton is also one of the plaintiffs in the lawsuit charging religious discrimination.

“I feel very lost, very lost, because I can’t use the talent that was given to me,” she testified. “I feel like I’ve been given a gift from God to care for children and help them.”

CCS argued that the harm the city is causing children outweighs any harm that could be caused if a same-sex couple had to be referred elsewhere.

Figueroa said the number of children in group homes who could be placed with families — about 250 — has not increased since referrals to CSS stopped.

She said DHS will not remove any of the children already in placements through CSS and will still refer siblings or children who have preexisting relationships with a foster family working with the organization. But CSS argued in court that the agency has been slow to act on that promise and cited instances where children with connections to a CSS family took weeks to get there.

Is foster care a public service?

Much testimony focused on whether foster care is a “public accommodation,” generally meaning a facility or service used by the public and thus subject to the fair-practices ordinance.

“This was church work long before it was city work,” Mark Rienzi, cocounsel for CSS, said. “And now, what the city is saying is, you’ve got to violate your religious beliefs if you want to keep working with kids.”

James Amato, a CSS official, testified that the organization subsidized its foster care program for $3.8 million last year.  “I’ve never thought of it as a business,” he said. “It’s a religious ministry.”

Without a new city contract, Amato said, the foster-care program would be forced to shutter within months.

Attorneys for the city noted CSS has other contracts with DHS, the city, and other counties unrelated to the lawsuit. They questioned how the church’s religious beliefs regarding same-sex marriage impact the job of a foster-care agency to certify the safety of a family or a home.

“A home study is essentially a validation of the relationships in that home,” Amato testified. “And in this case that relationship is not one that is acceptable in terms of church teaching. … Catholic teaching indicates children are best raised in a home with a husband and wife.”

A national child welfare conundrum

Similar cases have risen around the country following the U.S. Supreme Court’s 2015 ruling that struck down same-sex marriage bans.

Catholic Charities affiliates in Illinois offering foster care have shut down rather than comply with laws there that ban discrimination against same-sex couples. Some states, including Michigan, Virginia, Texas, and South Dakota have passed laws explicitly exempting organizations from antidiscrimination laws so they can continue to provide services to children.

Michigan’s federal court will hear an inverse of Philadelphia’s case next month. A same-sex couple there, along with the ACLU, sued the Michigan Department of Health and Human Services to prevent faith-based organizations that discriminate against same-sex couples from working with the state.