A few years ago, an LGBTQ couple approached Bethany Christian Services and expressed an interest in becoming foster parents. Bethany Christian, which maintained a contract with the city of Philadelphia to provide foster care, turned them down based on a religious opposition to same-sex unions. The Inquirer ran a story on the incident and mentioned that Catholic Social Services (CSS) had a similar arrangement with the city and also refused to consider LGBTQ couples.

After the article appeared, Bethany Christian changed their policy to accept members of the LGBTQ community. CSS did not, and their contract was promptly canceled. They sued the city on the grounds that their

religious rights were being violated. The named plain- tiff was Sharonell Fulton, a foster parent who had worked with the Catholic agency for many years. Two lower courts ruled against CSS, holding that the same-sex ban amounted to discrimination in viola- tion of the city charter.

Last week, the Supreme
Court agreed to hear the case. And my reaction was: Amen.

Many people mistakenly believe that receiving public funds requires you to accommodate – without exception – the requirements and mandates of your secular sponsor, even if they violate your own civil rights. A number of commentators praised the lower court decisions, expressing a view articulated by one of the women who had approached Bethany Christian in the first place, Megan Pazko: “I simply think you shouldn’t be able to use tax-

payer dollars to discriminate against LGBTQ parents.”

But it’s not that simple.

When trying to decide how far the government can go in forcing an agency that receives public funds to compromise its fundamental beliefs, courts employ a balancing test. The best explanation of that test can be found in the Religious Freedom Restoration Act, legislation passed in 1993 and proposed by none other than Chuck Schumer when he was still a congressman from New York. The Act states that “The government shall not substantially burden a person’s exercise of religion even if the burden results from a rule of general applicability.”

In other words, an anti-dis- crimination law designed to pro- tect LGBTQ citizens but that forces a Catholic organization to violate its tenets (even if this was not the primary purpose of the law) is unconstitutional under the First Amendment.

There is a narrow exception: the burden on the religious organ- ization must be necessary to fur- ther “a compelling government interest” and it must be the “least

restrictive way” that the interest can be achieved.

RFRA only applies to federal fund- ing, so some states have passed their own “baby” statutes. Pennsylvania’s was passed in 2002, and basically fol- lows the original law.

So if we apply RFRA to the foster care controversy, it’s not hard to see that in its laudable attempt to protect the rights of LGBTQ citizens, Philadelphia has trampled over the rights of Catholic Social Services. The organization operates according to the

principles of our faith, one of which holds that marriage is limited to one man and one woman. It’s not surpris- ing, then, that CSS also refuses to place children with heterosexual unmarried couples.

To my knowledge, none of them have sued. The ban is not directed at LGBTQ persons. It is directed at any- one who, in their principles or lifestyle, violates the most deeply-held values of the Catholic Church.

There were other ways in which the city could have resolved the controver- sy. CSS is only one of 29 foster care agencies doing business in Philadelphia. That provided a wide pool of families for needy children, a pool which includes LGBTQ-friendly organizations. Shutting down CSS was a draconian reaction when there were other alternatives.

Lori Windham, senior counsel at the Becket Law firm which is representing CSS, observed that “We are confident that the court will realize that the best solution is the one that has worked in Philadelphia for a century: all hands on deck.”

And that’s really the crux of the issue. If there were no other organiza- tions accepting LGBTQ couples, per- haps the city would be right.

But that’s clearly not the case. Coming down on a Catholic organiza- tion for ministering to children accord- ing to the dictates of a faith that doesn’t evolve with changing societal mores is patently wrong.

I’m betting this Supreme Court will agree.

Copyright 2020 Christine Flowers. Flowers is an attorney and a columnist for the Philadelphia Inquirer, and can be reached at cflowers1961@gmail.com.