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Court upholds freedom of foster-care agency

WASHINGTON (BP) – The U.S Supreme Court unanimously delivered an important victory for religious liberty, June 17, by upholding a faith-based adoption and foster-care agency’s right to carry out its ministry according to its beliefs.

In a judgment that spanned the ideological spectrum, the nine justices agreed Philadelphia violated the First Amendment’s protection of the free exercise of religion by refusing to contract with Catholic Social Services (CSS) for foster care services. The city halted referrals to the agency for foster homes it licenses in 2018 because CSS does not place children with same-sex couples based on its beliefs about marriage and sexuality.

Religious freedom advocates applauded the Supreme Court’s decision despite its failure to correct a three-decade-old ruling that diminished free-exercise protections.

Missouri Baptist Children’s Home President Russell Martin welcomed the court’s decision.

“While many of us in the faith-based community would have preferred an opinion with broader applications, we celebrate and rejoice in the ruling issued by the court,” Martin said. “People of faith have provided services to children and families for centuries, due in large part in response to their faith.  This is a step in helping to ensure these services may continue.

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“It is my prayer that this decision and the news surrounding it will challenge even more of our brothers and sisters to prayerfully consider becoming involved in ministering to children, youth, and families across our state. … May we see this as an opportunity to continue and expand on the foundation of child welfare services.”

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Kansas City attorney Mike Whitehead, member of Fellowship Church, Greenwood, told The Pathway that the Supreme Court’s decision could have offered a stronger defense of religious liberty than, in fact, it did.

“It could have been a bigger win for all faith-based ministries if the Court had addressed the key issue of the priority of religious freedom under the First Amendment compared to discrimination claims under a state or local law,” Whitehead said in a written statement. “Instead the Court evaded that issue. It based its ruling on an interpretation of the ‘public accomodation’ ordinance of the city. Finding that certifying adoptive parents is not a public accommodation like a restaurant or hotel, the Court said this ministry was not covered by the non-discrimination law for public accommodations in Philly.  The problem is, that law may be revised in the future to include such ministries, and then the case could be right back in court. …

“The decision was 9-0, which is impressive,” Whitehead said. “However, to garner all nine votes, the Chief Justice wrote a narrow decision that would try to satisfy everybody.   It ends up being less than decisive on issues that need to be decided.”

The Southern Baptist Convention’s Ethics & Religious Liberty Commission joined Alliance Defending Freedom and other organizations in a friend-of-the-court brief for the high court that not only told the justices Philadelphia had violated the free-exercise clause, but also urged them to overturn the 1990 Employment Division v. Smith opinion, which had the effect of shrinking religious free exercise. In Smith, the high court ruled the Constitution does not require an accommodation for free exercise of religion in the case of a neutral law that is generally applicable to the public.

Associate Justice Samuel Alito, joined by Associate Justices Clarence Thomas and Neil Gorsuch, argued in an opinion concurring with the judgment the high court should overturn Smith. Alito described the court’s opinion as “a wisp of a decision that leaves religious liberty in a confused and vulnerable state. Those who count on this Court to stand up for the First Amendment have every right to be disappointed – as am I.”

(Pathway Associate Editor Benjamin Hawkins contributed additional reporting to this article.)



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