by Emilie Kao

Editor’s Note: For another viewpoint, see Point: It’s the Foster Kids Who Suffer

To put the Supreme Court case Fulton v. City of Philadelphia into context, Americans need to know two numbers: 250 and 424,000.

There are 250 children in Philadelphia waiting for foster families to open their homes. And there are 424,000 awaiting foster-care placements nationwide at the end of 2019, according to the Children’s Bureau at the Department of Health and Human Services.

Two recent trends have made the foster-care crisis more acute: opioid abuse, which has dramatically increased the number of children in state care over the last several years, and COVID-19, which has decreased the supply of foster parents.

Philadelphia put out an “urgent” call for 300 more foster families in March 2018 shortly before it terminated the contract of Catholic Social Services. CSS was caring for needy children in the City of Brotherly Love 200 years before the city got involved in this work. So why, despite its waiting list, would the city refuse to work with CSS?

Because Philadelphia demanded that CSS violate its religious belief that marriage is between a man and a woman by ordering the agency to certify same-sex couples as married foster parents.

Of the 30 child welfare agencies that certify prospective foster parents, 29 work with same-sex couples. If a same-sex couple approaches CSS, it refers them to those agencies. Philadelphia made exceptions to other categories of its non-discrimination policy, including race and disability, but refused to accommodate the religious beliefs of CSS.

City officials tartly informed CSS that “it’s not 100 years ago,” but the traditional teachings of the Catholic Church are also what enables CSS to serve its members, who are three times as likely to adopt as the average American. Sharonell Fulton and Toni Simms-Busch, the two African-American Catholic foster moms who filed the case against Philadelphia, credited both their faith and CSS in Philadelphia with giving them the courage and strength to foster more than 40 children.

Not a single same-sex couple approached CSS for certification or complained about them. This was not lost on the court. Justice Stephen Breyer said what is “bothering me a lot” about the case is “that no family has ever been turned down by this agency — indeed has never applied,” but the city still tried to shut them down.

Justice Samuel Alito pressed the city to acknowledge that the core of the conflict was a disagreement by adults over same-sex marriage, not an effort to increase pools of parents for children. “If we are honest about what’s really going on here, it’s not about ensuring that same-sex couples in Philadelphia have the opportunity to be foster parents. It’s the fact the city can’t stand the message that Catholic Social Services and the archdiocese are sending by continuing to adhere to the old-fashioned view about marriage.”

Philadelphia officials are completely disregarding the illustrious history of faith-based agencies in recruiting and training foster and adoptive families. Indeed, many states have increased their capacity to care for children by partnering with faith-based agencies.

From 2012-2017, the availability of placements for children in foster care increased in states open to faith-based agencies, including by 25 percent in Georgia, 143 percent in Oklahoma, 46 percent in Kentucky, and 36 percent in Arkansas. Legislatures in 11 states (Alabama, Kansas, Michigan, Mississippi, Oklahoma, South Carolina, South Dakota, North Dakota, Tennessee, Texas and Virginia) have recognized the valuable services of faith-based agencies and enacted laws to protect their religious freedom.

By contrast, in California, Illinois, Massachusetts and the District of Columbia, CSS has been forced to shut down because of its beliefs on marriage. After Illinois told CSS that its beliefs would prohibit them from partnering with Chicago in 2011, the state lost 1,547 foster homes, the greatest decrease in any state that reported data in that period, according to the Chronicle of Social Change. An estimated 2,000-3,000 children were displaced after the new policy was enacted.

More than 8,000 faith-based foster care and adoption agencies and an untold number of children will be affected by the Supreme Court’s ruling. Even before this case reached the court, the harm to children from religious discrimination were undeniable.

Normally when faced with a crisis of supply, the government will try to increase its capacity by casting the broadest net possible for private-sector partners. But by eliminating agencies because of their belief that every child deserves a mother and a father, Philadelphia will reduce its pool of prospective foster parents.

The Supreme Court should protect the religious freedom of foster families and agencies. Every agency and foster parent is a lifeline to a child in need. Excluding agencies like CSS harms children and does not increase the ability of same-sex couples to foster or adopt.

Upholding the Constitution’s protection of religious freedom is in the best interests of the 250 children in Philadelphia — and the 424,000 children across America waiting to be welcomed into a loving family.


Emilie Kao is the director of The Heritage Foundation’s DeVos Center for Religion & Civil Society. She wrote this for