After a judge ruled against two religious foster care agencies in Philadelphia, one is fighting the mandate to place children with same-sex couples and the other appears to have given in.
Catholic Social Services of Philadelphia (CSS) filed an emergency motion Monday with the 3rd U.S. Circuit Court of Appeals asking for a preliminary injunction that would reinstate the adoption and foster care charity as a contractor with the city. Bethany Christian Services, like CSS, had its contract revoked in March after officials with Philadelphia’s Department of Human Services (DHS) discovered the agencies would not place children with same-sex married couples because of the organizations’ Biblical beliefs about marriage. CSS sued, claiming religious discrimination, and asked the court to restore its contract. Bethany did not join the lawsuit, and in late June the agency agreed to work with same-sex couples.
“Bethany Christian Services has represented that it will enter into a new contract with the [Department of Human Services] for the coming year and comply with the fair practices requirements under its contract,” U.S. District Judge Petrese Tucker said Friday in her ruling denying CSS a preliminary injunction against the city.
I asked Bethany spokeswoman Morgan Greenberg why the organization was abandoning its previous policy, which was based on a Biblical understanding of marriage. Greenberg responded: “Bethany is committed to following Jesus’ call to love and protect vulnerable children and families; therefore, it remains important that Christians lead in providing high-quality social services. We are also continuing support for legislative efforts that protect our right to serve in a manner that is consistent with our beliefs.”
Greenberg said Bethany, a national organization, would comply with the law in all the cities it serves.
CSS continues in its legal battle, which started in 2004, when Massachusetts recognized same-sex marriage and refused to allow a religious exemption, forcing the agency to close its location in Boston.
“Absent an injunction ordering [the city of Philadelphia] to maintain the status quo that has prevailed for 50 years, Catholic’s foster care program will close within months, harming foster children and families,” attorneys with Becket said in the appeal.
Tucker lamented that the parties did not choose mediation over a court fight. Yet her ruling dismissed all claims of religious discrimination and free exercise and free speech violations that CSS would have brought to mediation with city attorneys and the American Civil Liberties Union, the lead organization working to close Christian foster and adoption agencies that contract with local governments.
CSS foster parents testified during a three-day hearing in June they would be devastated if they could no longer work with the agency. But Tucker’s ruling gave little consideration to the plaintiffs’ commitment to Biblical convictions about marriage and family, treating all foster and adoption agencies as interchangeable.
She trivialized the desires of foster and adoptive parents to work exclusively with like-minded agencies such as CSS and said, “Plaintiffs are, as they always have been, entitled to be foster parents with any of the 30 foster care agencies with whom DHS has contracted.”
The same holds true for the lesbian couple who reported Bethany’s policy to the Philadelphia Inquirer. Once DHS Commissioner Cynthia Figueroa became aware that two city contractors did not—and had never in their decadeslong service to Philadelphia—place children with same-sex couples, she halted all new intake referrals to CSS and Bethany. CSS had contracted with the city for 50 years and Bethany for almost 20. The city added “sexual orientation” to its nondiscrimination policy, which contractors must honor, in 1982.
Despite the apparent oversight by all parties, Tucker concluded that by signing the service contract, Bethany and CSS, as contractors providing a “public accommodation,” agreed to comply with the ordinance.
Lori Windham, a Becket attorney, disputed the judge’s conclusion.
“Foster care has never been considered a public accommodation in the 50 years that Catholic [Social Services] has worked with the city of Philadelphia,” Windham told me. “The city’s officials couldn’t think of a time that it had been treated that way—until they decided to target Catholic because of its religious beliefs.”
Tucker argued the city’s ordinance is neutral toward religion because it does not target or intentionally discriminate against religious persons or entities. But Philadelphia’s “neutral” law may neutralize two more religious child welfare agencies either by closure or capitulation.