What Happens When the State Has Power over Adoption Agencies

In a surprising turn of events, the Supreme Court on Thursday ruled in favor of Catholic Social Services (CSS) and against the City of Philadelphia. Upon learning that the Catholic agency would not place children with same-sex couples as a part of its foster care work, the city did not renew its contract with CSS, citing antidiscrimination laws. Philadelphia argued that when hiring independent contractors, the city may include any provisions it wishes in the contract. CSS lawyers argued that the agency’s only desire was to be able to continue the work it has done for centuries and that requiring it to endorse same-sex couples as foster parents would violate its religious teachings on marriage, and thus is a violation of the First Amendment. In a unanimous decision, the Supreme Court of the United States sided with Catholic Social Services. Chief Justice John Roberts wrote:

The refusal of Philadelphia to contract with CSS for the provision of foster care services unless CSS agrees to certify same-sex couples as foster parents violates the Free Exercise Clause of the First Amendment.

Roberts also added:

CSS seeks only an accommodation that will allow it to continue serving the children of Philadelphia in a manner consistent with its religious beliefs; it does not seek to impose those beliefs on anyone else.

The decision, however, was made in such a way as not to challenge Employment Division v. Smith, where the court ruled that “when the government has a ‘generally applicable’ law or regulation and enforces it neutrally, the government’s action is presumptively legitimate, even if it has some ‘incidental’ adverse impact on some citizens.”

Not all those on the bench were satisfied with this strict ruling. Justice Amy Coney Barrett called arguments in favor of overturning Smith “serious” and “compelling,” and Justice Neil Gorsuch pointed out that cases like this will keep coming up until the court “musters the fortitude” to overturn Smith. Joining Justices Barrett and Gorsuch, Justice Samuel Alito was “disappointed” the court failed to uphold the First Amendment by making this decision so limited.

This decision brings to the forefront the absolute absurdity of our current foster system. Given our knowledge of the dangers of monopolies and the inherent unaccountability of the state, it is astounding that the government has a monopoly on foster kids, in any city whatsoever. The fact that Catholic Social Services even needs Philadelphia’s permission to take care of children, like the church has for two millennia, should infuriate everyone of goodwill.

What is also frustrating is the fact that even though no gay couple has ever approached CSS for fostering, it is apparently not sufficient for gay couples to go to the other twenty-nine agencies contracted by the city (even though CSS stated that if a gay couple were to approach them, they would simply redirect them to one of the other, again, twenty-nine foster agencies in the city). No, the city decided it would try to use the coercion of the government to force the Catholic agency to act in contradiction of its faith.

Conservative justices do not have a great track record. Indeed, history shows them to be largely useless (case in point, its recent decision to maintain the so-called Affordable Care Act). But sometimes the useless counteracts the stupid. While it certainly can be argued that the Supreme Court has no constitutional authorization to involve itself in municipal adoption laws, it can at least be celebrated that the city’s asinine law will not be imposed upon CSS. Nonetheless, victories should be celebrated as they come. With any luck, Employment Decision v. Smith will be overturned in the near future. Most germanely though, Catholic Social Services will be able to continue practicing its faith in the city of Philadelphia for the foreseeable future. The Catholic Church served children for two millennia before the state usurped that power, and she will serve the poor, and needy long after the state withers away, God willing.