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Third Circuit: Catholic Charities only entitled to 'beliefs,' not free exercise


Catholic Charities has provided foster care services to the children and families in Philadelphia for a century, which began long before the City of Philadelphia had begun its involvement with foster care.  Being Catholic, Catholic Charities has certain standards which it follows to determine whether a family is suitable placement with a child.  Among those standards is whether that family’s living arrangement is consistent with Catholic beliefs.  Accordingly, Catholic Charities’ practice was to not place children in households that have unmarried partners, which includes partners that are the same sex. 

The City of Philadelphia began regulating foster care in the 1950s, and until 2018, Catholic Charities and Philadelphia had a healthy relationship, despite the fact that their placement practices were according to Catholic beliefs. However, in 2018, the City began inquiring about why Catholic Charities would not place children with same-sex couples.  During a meeting, city officials told Catholic Charities that it is “not 100 years ago,” that “times have changed” and that the City’s view of the “teachings of Pope Francis” should be followed.  Immediately after the meeting, Philadelphia informed Catholic Charities that it would no longer refer them for foster children. 

The Third Circuit handed down a precedential Opinion in Fulton v. City of Philadelphia.  The region’s highest court, under only the Supreme Court, affirmed Philadelphia’s decision to no longer refer children to Catholic Charities, which effectively shuts the charity down. 

It is alarming that Philadelphia and the Courts are both comfortable with shutting the doors of a charity that has served children for a longer period of time than the government itself.  But the reasoning is what is truly alarming.  The Third Circuit repeatedly made reference to the idea that Philadelphia did not force Catholic Charities to change their “beliefs” or “objections” regarding same-sex relationships, so therefore Philadelphia’s actions pass constitutional scrutiny.  Consider these quotes:

  • In a letter, the City “respect(s) [Catholic Charity’s] sincere religious beliefs, but your freedom to express them is not at issue here where you have chosen voluntarily to partner with us….” 
  • The Third Circuit highlighted caselaw, emphasizing that “the First Amendment obviously excludes all governmental regulation of religious beliefs….” 
  • “[W]hile…religious and philosophical objections to same-sex marriage are protected, it is a general rule that such objections do not allow business…to deny protected persons equal access to goods and services….” 
  • “There is simply no evidence that this is a veiled attempt to coerce or impose certain religious beliefs on [Catholic Charities].”

The Third Circuit creates a separation between belief and practice.  It claims that a charity can hold onto its beliefs, so long as it can regulate the charity’s practices.  But the problem is that Philadelphia and the Third Circuit are, in essence, saying that citizens can believe what they want about marriage, they just cannot act upon those beliefs. A foster care charity can believe that it is best for the child to be placed in a home with a married man and women, or alternatively a single parent, but it cannot put that belief into practice. However, the First Amendment doesn’t guarantee that we have the right to “believe” what we want.  It guarantees that government cannot prohibit the “free exercise” of religion.  “Exercise” inherently means to act, not merely believe.

This decision is the symptom of a larger problem that needs to be corrected.  The quotes above come from other cases, meaning the Third Circuit is acting upon a trend in case law.  Courts have made the transition from “exercise” to “belief.”  This needs to be fixed.  What good is the freedom to believe something if one cannot act out their beliefs? 

Catholic parents deserve the ability to have access to foster care through an agency that views family in the same way that they do.  Adoption and foster care are, after all, are one of the most personal and life-changing events that a family can participate in. And, often, fostering an adopting are religiously motivated. Likewise, those who are called by God to serve youth and adoptive families should not be forced to choose between their sincerely held religious beliefs about family and their religious calling into that charitable cause.

The Free Exercise Clause needs to be restored. Perhaps this is the perfect case to accomplish the needed change in case law.  The cause is certainly sympathetic.  Catholic Charities should appeal.  Hopefully, the Supreme Court takes this case and corrects this problem.   

Curtis Schube serves as legal counsel for the Independence Law Center.

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