Putting the ‘exercise’ in free exercise
In recent years, the Supreme Court has shown a greater…
Jimmy Moore had been waiting for months for the U.S. Supreme Court to decide Fulton v. Philadelphia.
The nation’s high court had heard oral arguments in November over whether the City of Philadelphia could refuse to certify a Catholic foster care agency unless the charity agreed to place foster children with same-sex married couples.
To Moore, president and CEO of The Children’s Home of Lubbock, and to leaders of dozens of other child services ministries associated with Churches of Christ, the question was crucial.
“It was about whether they could contract with the city and still hold on to their closely held religious beliefs,” said Moore, whose organization places as many as 50 children at a time in foster homes in West Texas.
Finally, the Supreme Court ruled unanimously in favor of the Catholic foster care agency. As soon as the recent decision came down, one of the Lubbock nonprofit’s directors emailed Moore with the news.
“I remember — I was at an eye exam that day when I heard,” Moore said. “So to see 9-0 in the vote, I’m like, ‘Wow!’ Talk about eye-opening.”
Like Moore, many leaders of faith-based adoption and foster care agencies had watched the case and were anticipating the outcome. Several told The Christian Chronicle they were encouraged both by the protection of the Philadelphia charity’s religious freedom and by the unanimity of the decision.
Chandler Means, executive director of Agape in Nashville, Tenn., said at least a half-dozen donors, friends and board members immediately texted or emailed him links to news coverage.
“I was inundated with things like, ‘Guess you’ve already seen this, but what did you think?’ or ‘Did you see this article?’ or ‘Did you hear about the decision?’” Means said. “We felt pretty confident … but I was pretty shocked it was a 9-0 outcome.”
Sherri Statler, president of Christian Homes and Family Services in Abilene, Texas, said she also heard from several directors.
“One of them contacted me and said, ‘This is good news, right?’” Statler said. “And I said, ‘Absolutely. An answer to prayer.’”
At issue in Fulton v. Philadelphia was the legal interpretation of part of the First Amendment to the U.S. Constitution, which reads, “Congress shall make no law respecting an establishment of religion or prohibiting the free exercise thereof.”
In Pennsylvania, as in most states, city departments that take custody of children who need housing partner with nonprofits like Catholic Social Services to conduct home studies and evaluate and certify foster parents. Philadelphia had contracted with the Catholic charity for more than 50 years. But in 2018, after local media widely publicized the nonprofit’s position that marriage was between only a man and a woman, the city suspended its contract with Catholic Social Services and said it would not renew until the charity agreed to certify same-sex couples.
That, the Supreme Court decided, was a violation of Catholic Social Services’ free exercise of religion. Because the possibility of an exemption to the policy existed, the state was required to show the rule advanced a “compelling government interest” and that the policy was “narrowly tailored” to achieve that interest — a challenging legal bar to clear. No such compelling interest existed, the court held, especially because Catholic Social Services was just one of dozens of agencies that contracted with the state.
Like Catholic Social Services, leaders of Church of Christ-associated nonprofits that serve children in need say they do so in response to their faith, and they seek to stay true to those convictions when evaluating homes for the children. And while leaders see a growing diversity among the organizations regarding just what that church connection means, the general consensus that marriage is between a man and a woman continues to exist.
Nathan Samuel, president and CEO of Childplace Inc. in Jefferson, Ind., said he sees the court decision as a recognition of the role faith-based organizations historically have played in helping children.
“The majority of agencies across our state are faith-based and have religious ties,” Samuel said. “I thought the Supreme Court ruling provided clarification. … It strongly stated that they supported the need — 9-0 — for faith-based agencies and the need to allow them to do their work in a way that allows them to fulfill their mission and be true to who they are.”
One factor in the Fulton case was a lack of evidence that any same-sex couples had even approached the nonprofit and been rejected based on Catholic and historic Christian teachings. At the same time, Catholic Social Services’ policy was to refer any same-sex couples seeking to become foster parents to another agency. Foster care and adoption care nonprofits contacted said they have similar policies of referring potential foster care parents that don’t align with their statements of faith to other organizations.
“These are vulnerable populations we’re serving,” said Means, whose organization now has nearly 80 children placed with 60 families in Tennessee. “Our foster parents and our adoptive parents — we see them as partners in the ministry to those vulnerable populations.”
Statler said she works to remind her staff and herself routinely that the focus of Christian Homes in Abilene is on helping women and children and families who come to the organization for help.
“That’s what we do, and we cover it in prayer all the time,” she said. “I don’t mean that to sound pollyannaish, but it’s a reasonable aspiration.”
During the two decades after World War II, Churches of Christ throughout the U.S. moved into the foster care and adoption arena in earnest.
Some ministries sprang up organically among churches or groups of Christians. Others developed from existing children’s homes. Some were overseen by church elders at first, though most over time have spun out as their own independent nonprofits.
Means was raised in Florida, where his father worked at Mount Dora Children’s Home. He said such children’s homes as well as foster care providers and adoption agencies historically relied on personal referrals from members of Churches of Christ. However, referrals now typically come from state agencies.
“When I was a kid, somebody from a church would call from somewhere in Alabama,” Means said. “And they’d say, ‘We’ve got this family here, and Dad’s a drunk; he got arrested. And Mom can’t take care of the kids. Hey, could we send these three boys down there? Can you guys take care of them, put them in school?’ That doesn’t happen anymore.”
Over the past half-century, states and local municipalities have moved more heavily into providing social services to children in crisis situations and quickly become the primary pipeline for those in need of care. And, as in Philadelphia, such agencies typically contract with the existing nonprofits to find and vet foster parents.
With that arrangement comes state dollars to help fund the foster care, and Moore said that has forced nonprofits like The Children’s Home of Lubbock to decide how much they should cooperate with the state.
“To me, it’s kind of a catch-22. If you don’t take funding from the state, and you want to be a viable part of the ministry of taking care of kids, but you’re not getting money from donors, then something has to give.”
“To me, it’s kind of a catch-22,” he said. “If you don’t take funding from the state, and you want to be a viable part of the ministry of taking care of kids, but you’re not getting money from donors, then something has to give.”
At the same time, those organizations that arrange foster care or adoption have also expanded or altered their services to address other needs. For example, Christian Homes in Abilene owns an apartment building where pregnant women live for free while preparing for the adoption process. Childplace operates a residential treatment center and counseling clinic focusing on healing the scars of abuse and trauma. And several have begun offering early adult residential or assistance programs for those who age out of the foster care system.
Those services create new challenges for faith-based providers similar to the questions addressed in Fulton.
“Almost every year at our annual conference, some legal person comes in to talk about that,” said Samuel, referring to a national meeting of agencies associated with Churches of Christ. “So it’s always on our radar because we want to stay informed.”
Some religious freedom advocates have responded to the Fulton outcome with disappointment, especially considering the fact that three justices generally considered conservatives specifically chose a more narrow ruling that focused on the potential for discretion in the Philadelphia law, while three other justices argued in favor of a more sweeping expansion of free exercise of religion.
But Lori Windham, the attorney who argued the case before the Supreme Court, said she was “thrilled” with the outcome.
“I think it’s actually a strong protection for religious ministries and an advancement in the law. I think it shows that the law is going in a great direction.”
“I think it’s actually a strong protection for religious ministries and an advancement in the law,” Windham told the Chronicle. “I think it shows that the law is going in a great direction.”
Windham said she expects the unanimity of the decision will encourage lower courts to take great care to protect religious freedom when evaluating similar restrictions in the future.
“This is the first time this issue has come before the Supreme Court,” she said. “I think having all nine justices come together and say, ‘No, Philadelphia. You can’t shut down this agency,’ sends a really powerful message to the lower courts about what the Supreme Court expects to see going forward.”
And Matt Stiles, an Alabama employment law attorney who specializes in serving faith-based organizations, said he’s heartened by the decision as well and is reassuring his clients.
“We live in an era where the Court seems overwhelmingly reluctant to create bright-line rules and is much more likely to decide cases on a very narrow case-by-case, fact-intensive basis,” Stiles said. “But to me, there continues to be this broader, 35,000-foot takeaway that courts tend to get these things right on First Amendment faith-based issues. They just have a tortured logic in how they get there.”
Regardless, he believes the Court sent a message to cities and governments seeking to regulate religiously motivated activities or undermine faith-based missions that they run the risk of facing headline-making litigation — and that there’s a good chance they’ll ultimately lose in court.
For several years, in addition to his work for Baptist- and Methodist-affiliated organizations, Stiles has provided training and guidance to Network 1:27, an organization of nearly 50 agencies in 20 states associated with Churches of Christ that provide a mix of services to children in need — from foster care and adoption to counseling and medical care.
Network 1:27 has been a crucial source of information and support among Christian adoption and foster care agencies, said Samuel, the group’s current president. The members meet annually, hearing from experts on a wide range of topics as they share resources and support one another.
“We’ve kind of diversified over the years, but it’s all rooted in and surrounded by the family and trying to care for children that need care.”
“We understand each other, and we share a commonness among us, yet we’re all from different states,” Samuel said. “We’ve kind of diversified over the years, but it’s all rooted in and surrounded by the family and trying to care for children that need care.”
Moore said that camaraderie among Network 1:27 members is as valuable as anything else it provides.
“I look forward to spending time with the brothers and sisters in Christ,” he said. At a typical state-level conference, “There’s no one ‘talking God.’ There’s no one talking about morality. They’re just talking about the dos and don’ts.”
Stiles said he believes the Fulton case and the resulting decision have highlighted the importance of cooperation among Christian foster care and adoption agencies.
Because of the lack of a denominational structure, that’s particularly true for those associated with Churches of Christ, he said.
“These are far-flung and in every state. And I think being part of Network 1:27 is absolutely vital to the long-term sustainability of Christian-affiliated foster care. If they try to act on their own, I think it’s just too easy for all of these other entities who are pushing funding terms and conditions on them to say, ‘Well, we just don’t make those kinds of exceptions.’”
As caring for children becomes more complicated and organizations adapt to changing needs, Agape in Nashville’s Means said he expects significantly more discussion among agencies about the recent legal decision and related challenges.
“This thing that happened in Fulton — it’s a good decision. It’s an important decision. It’s a helpful decision,” he said. “But it’s not the decision we need ultimately. That’s going to come later.”
KENNETH PYBUS is an associate professor and chair of journalism and mass communication at Abilene Christian University in Texas and a First Amendment lawyer.
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