Ever since the legalization of same-sex marriage in 2015, we’ve been seeing myriad broader implications from the U.S. Supreme Court’s ruling in Obergefell. From wedding cake bakers to event planners, if you dissented from the new regime you could have your livelihood taken from you. Now, the inexorable logic of Obergefell is bearing down on religious organizations that do social welfare work, as conservatives predicted.
Last week, a group of foster families in Philadelphia asked a federal court to end a new municipal policy that prevents Catholic Social Services from placing children in foster homes. Catholic Social Services is one of the largest and highest-rated foster agencies in Philadelphia, but because it adheres to Catholic teaching on homosexuality and does not place foster children in same-sex households, the City of Philadelphia is cutting them off.
City officials are doing this despite a massive shortage of foster families in Philadelphia. The Becket Fund for Religious Liberty, which is representing the foster families, issued this summary of the case last week:
In March 2018, the City of Philadelphia put out an urgent call for 300 new foster families. Despite the desperate need for homes for the 6,000 children in Philadelphia’s foster care system, the City then abruptly barred Catholic Social Services, one of the most successful foster agencies in the city, from placing any children. The City’s actions mean that foster homes are sitting empty and loving foster parents are unable to serve at-risk children, simply because the City disagrees with Catholic Social Services’ longstanding beliefs about marriage.
Philadelphia will terminate its contract with Catholic Social Services at the end of June unless the agency abandons the Catholic Church’s teaching on marriage. Never mind that no same-sex couple has ever complained about Catholic Social Services, or that the agency refers couples with whom it cannot work to one of 26 other agencies in the region.
Never mind that Sharonell Fulton, a plaintiff in the case and a foster parent who has cared for more than 40 children over 25 years (including the two special-needs siblings currently in her care), depends on Catholic Social Services and says she cannot continue fostering children without the agency’s help.
Never mind that Philadelphia isn’t alone in its foster care crisis, that foster families are in short supply across the United States. In just the past few weeks, local news outlets have chronicled foster family shortages in Missouri, Colorado, Texas, Indiana, Washington, and Illinois. In Michigan alone, more than 13,000 kids are waiting for placement in foster homes.
Never mind all that. The only thing that matters to municipal officials in Philadelphia is that Catholic Social Services must bend the knee and abandon its deeply held religious beliefs. If orphans and abused children must go without foster homes to make a point, so be it.
Some States Scramble To Protect Religious Agencies
This should not surprise anyone who has paid attention to the drift of the same-sex marriage debate over the past 15 years. Barring religious organizations like Catholic Social Services from carrying out their work was always going to be the result of legalizing same-sex marriage. In fact, it’s just a taste of what’s to come.
When the U.S. Supreme Court issued its ruling in Obergefell v. Hodges in 2015, it made the showdown now underway in Philadelphia inevitable. If same-sex marriage is legal, on what basis can Catholic Social Services, or any other group that contracts to provide government services, refuse to work with same-sex couples? Before Obergefell, religiously affiliated foster care and adoption agencies could refuse to place children with same-sex couples on the basis that they weren’t legally married.
Now that they are, some states have realized they must pass laws that specifically allow religiously affiliated child welfare agencies to conduct placements based on their religious beliefs. Early this month, Oklahoma became the eighth state to allow state-licensed child welfare agencies to cite religious beliefs when making placements for foster care or adoption. Last year, Texas, South Dakota, and Alabama passed similar laws.
Challenges to such laws are underway, and it’s not clear they will withstand legal scrutiny in a post-Obergefell world. In 2016, a federal judge ruled that Mississippi’s ban on same-sex couples adopting children is unconstitutional, a violation of the Fourteenth Amendment’s equal protection clause—more or less the same argument that proved successful in Obergefell.
This Is About Much More Than Same-Sex Marriage
The late Justice Antonin Scalia saw all of this coming more than a decade before Obergefell. When he delivered his dissent in Lawrence v. Texas, the 2003 Supreme Court decision that struck down a Texas law prohibiting sodomy, he warned that the majority’s reasoning would eventually prevent states from passing laws against a host of practices, not just same-sex marriage.
In Lawrence, the Supreme Court overturned Bowers v. Hardwick, a 1986 case that upheld the constitutionality of a Georgia sodomy law that criminalized anal and oral sex between consenting adults. The majority opinion in Bowers reasoned that just because the Georgia law was attempting to uphold a certain moral standard, that didn’t mean it violated the Fourteenth Amendment: “The law is constantly based on notions of morality, and if all laws representing essentially moral choices are to be invalidated under the Due Process Clause, the courts will be very busy indeed.”
In his Lawrence dissent, Scalia argued that by overturning Bowers the Supreme Court was effectively saying states have no right under the Constitution to make laws based on public notions of morality:
State laws against bigamy, same-sex marriage, adult incest, prostitution, masturbation, adultery, fornication, bestiality, and obscenity are likewise sustainable only in light of Bowers’ validation of laws based on moral choices. Every single one of these laws is called into question by today’s decision; the Court makes no effort to cabin the scope of its decision to exclude them from its holding.
He called the overturning of Bowers “a massive disruption of the current social order.” By ruling that there is no rational basis for a law prohibiting sodomy, the Supreme Court’s ruling in Lawrence “effectively decrees the end of all morals legislation. If, as the Court asserts, the promotion of majoritarian sexual morality is not even a legitimate state interest, none of the above-mentioned laws can survive rational-basis review.”
All of this brings us back to Philadelphia’s new policy barring Catholic Social Services from placing foster children and providing services to foster families. The city’s policy is indeed cruel and bigoted: it punishes orphans and foster children who need families to care for them, and it targets Catholic Social Services for traditional beliefs about marriage that it finds repugnant.
But given the decay of constitutional jurisprudence on questions of morality over the past 15 years, it might now be perfectly legal—and we should expect more of the same from progressive cities and states in the future.