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Supreme Court Hears Case Pitting Religious Liberty Against Same-Sex Marriage

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An important religious liberty case went before the U.S. Supreme Court Wednesday – the first heard by new justice Amy Coney Barrett.   A Catholic foster agency in Philadelphia had told a reporter because of its belief in traditional marriage, it would refer same-sex couples to other foster agencies rather than place children with such couples.   Reading that, Philadelphia officials decided if Catholic Social Services (CSS) would do such a thing, it would be anti-gay discrimination.

No Evidence Gays Ever Came to the Catholic Agency for Help

Now, remember, no same-sex married couple had ever come to the agency.  As US Deputy Asst. Attorney General Hashim Mooppan pointed out in arguing for Catholic Social Services.

“There are dozens of foster agencies that are available to serve gay couples in the city of Philadelphia,” Mooppan said. “And there’s no evidence that any gay couples ever even tried to use CSS as their agency.”

But just the idea that the agency would turn them away was enough for Philadelphia to restrict CSS’s doing foster care business with the city.

‘Our Ministry is Stuck on the Sidelines’

That’s saddened CSS's James Amato, who said, “We stand ready to provide loving homes for children in need, but our ministry is stuck on the sidelines.”

Philadelphia argued it has every right to do that.

Attorney Neal Katyal, representing the city, asserted, “The government has broad powers to impose conditions on contractors like CSS that stand in the government’s shoes performing government functions.”

Or, as Chief Justice John Roberts put it, “Shouldn’t the city get to strike a balance as it wishes when it comes to setting conditions for participating in what is, after all, its foster program?”

City Pushed Around an Agency Who’s Done This for Two Centuries

No, said the attorney representing Catholic foster mothers who’ve taken Philadelphia to court.

“Here the city is reaching out and telling a private religious ministry which has been doing this work for two centuries how to run its internal affairs and trying to coerce it to make statements that are contrary to its religious beliefs,” said Lori Windham of the Becket Fund, a religious liberty law firm.

That’s why this is a religious liberty case. Philadelphia was basically demanding the agency abandon its biblically-based belief about marriage to continue what it had been doing for the city.

Belief in One-Man/One-Woman Marriage an ‘Odious Anachronism?’

Or as Justice Samuel Alito put it, “The city can’t stand the message the Catholic Social Services and the archdiocese are sending by continuing to adhere to the old-fashioned view about marriage.”

Mooppan also criticized the viewpoint of city officials and the action they took against CSS, saying, “The statements that have been made by various officials made clear that the reason they’re doing that is they view this as some sort of odious anachronism -- rather than, as this Court has recognized, a decent and honorable view that people can recognize and accept in a country that’s committed to religious tolerance.”

‘Felt Like I’d Been Kicked in the Stomach’

One of the Catholic foster mothers who took Philadelphia to the court said its action against CSS harmed children who needed families.

Said plaintiff Toni Simms-Busch, “It felt like I’d been kicked in the stomach the day I learned the city was closing down Catholic Social Services foster program despite a severe shortage of foster families.”

After the case was heard, Senior Fellow Maureen Ferguson at the Catholic Association wrote, “For 200 years, Philadelphia’s Catholic Social Services tirelessly rescued the suffering children trapped in foster care by placing them in loving homes. In a politicized and heavy-handed decision, the city of Philadelphia excluded Catholic Social Services and their partner families from its foster care program, leaving 250 children in limbo awaiting a foster home." 

She continued, "In oral arguments today, Justice Kavanaugh pointedly asked why city officials provoked this unnecessary fight since there are 30 other foster care agencies in Philadelphia that place children with same-sex couples. Justice Thomas focused on the bigger question of whether foster care programs exist for the good of vulnerable children or to advance the rights of LGBTQ adults."

Ferguson concluded, "We hope the Court will side with the needs of children and the people of faith at Catholic Social Services who have demonstrated heroic love for vulnerable foster kids for two centuries." 

This is not a unique case, and governments cracking down on religious foster or adoption agencies who hold to the concept of one-man/one-woman marriage is growing.

As Windham pointed out, “There have been agency closures across the country over this very issue.”

All for their standing firm with what the Bible has said for thousands of years about marriage and homosexuality.

Windham asserted, “This is not an unknown or unusual religious belief.  Eleven states have passed laws to specifically protect child welfare providers in this context.”

The Justices Saw These Cases Would be Coming

Even as they legalized same-sex marriage in the 2015 Obergefell vs. Hodges ruling, the justices warned religious believers would have to be protected.   Because for many millions of them, their beliefs about homosexuality aren’t just their personal opinions – they’re determined by their holy scriptures.    

Now it’s time to see if the justices themselves will rule in a way to protect those religious beliefs.  

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About The Author


As a freelance reporter for CBN's Jerusalem bureau and during 27 years as senior correspondent in CBN's Washington bureau, Paul Strand has covered a variety of political and social issues, with an emphasis on defense, justice, government, and God’s providential involvement in our world. Strand began his tenure at CBN News in 1985 as an evening assignment editor in Washington, D.C. After a year, he worked with CBN Radio News for three years, returning to the television newsroom to accept a position as a senior editor in 1990. Strand moved back to the nation's capital in 1995 and then to