The Free Exercise of Idolatry: Religious Freedom Meets LGBT+ Foster Parents in the Supreme Court
June 30, 2021
You may have read about the US Supreme Court’s recent, significant religious liberty case, Fulton v. City of Philadelphia. The case was not earth-shattering in terms of constitutional law. The significance was the context; it was the most recent chapter in the story of American Christians fighting for the right to discriminate against LGBT+ people under the banner of religious freedom. A couple years ago, Philadelphia decided not to contract with foster care agencies that refuse to certify LGBT+ people as foster parents. The way foster care works in many (perhaps all) cities is that non-profits get government contracts to recruit, train, and certify foster parents; monitor foster homes; and perform a range of other duties like finding therapy or other services for parents and children. One such organization, Catholic Social Services (CSS), said it would not certify same-sex couples as foster parents, though it would still certify single LGBT+ individuals as foster parents. Philadelphia then refused to renew its contract with CSS, and CSS sued. It asserted that the city forced it to choose between its government contract on the one hand, and freely exercising its religion on the other. Specifically, certifying same-sex couples as foster parents involved approving of the couple’s relationship, which CSS could not do according to its religious beliefs.
Of course, the law governing foster care in Pennsylvania (and every state) does not require an agency to morally approve of prospective foster parents’ marriages to certify them. That would be absurd. It only requires that an agency evaluate whether someone looking to be certified can, in fact, carry out the duties of a foster parent (you can read the relevant Pennsylvania statutory section yourself). Agencies do things like perform criminal background checks on the prospective foster parents, make sure they have a stable income, or check that the house’s smoke detectors are working. Agencies do not confer God’s blessing on a couple’s relationship.
Philadelphia made this point during the litigation. But it didn’t matter legally because, as the Court noted, “CSS believes that certification is tantamount to endorsement” (emphasis mine). I’m not criticizing the decision here. Courts should only be involved in determining whether someone does in fact hold a religious belief, not what their beliefs should be. My problem is with CSS, and with my fellow Christians who think like them.
Why would a Christian believe that they cannot certify a couple caring for a foster child unless that couple is straight? The answer can’t just be that CSS thinks Scripture disapproves of same-sex marriages. Scripture disapproves of a whole lot of things, but that doesn’t mean CSS won’t license, say, a couple who gossips. Does CSS think that Christians taking part in the granting of any benefit to married LGBT+ people constitutes God’s condoning of that marriage? That would be a stretch, and would extend far beyond the realm of foster care. Christian waiters, make sure those two women getting drinks aren’t on a date before serving them lest you accidentally endorse their relationship! Perhaps CSS believes that, biblically, a same-sex couple’s home cannot be a safe, appropriate place for a child to live, and a Christian should never say that it is (that was a rough phrase to type). I don’t know how you get there scripturally, unless of course Scripture has nothing to do with it and you are just relying on harmful stereotypes about the danger of gay people to children. But remember, CSS does certify LGBT+ people as single foster parents, which leads to some real head-scratchers: what is it about a foster dad married to another man that wasn’t true of him when he was just dating that guy? Can a lesbian couple foster children so long as only one parent is certified? Does CSS interrogate same-sex roommates of prospective foster parents to make sure nothing untoward is happening?
But as confusing as that line-drawing is, the truly perplexing, and also revealing, demarcation is this: CSS does not require its foster parents to be Christians. In evaluating the appropriateness of foster parents, it really doesn’t matter to CSS if those parents are following Jesus. That’s no sweat off their brow. They have no issue with “endorsing” a marriage where both parties explicitly reject whatever doctrine of Christianity they please. They can believe Jesus was not the son of God, he was not resurrected, and he will never return. The Holy Spirit is a figment of the imagination. The God of the Bible is a cruel monster and they can be thankful every day that he absolutely does not exist. They can spit on the Bible in their free time. But if they’re both dudes…
You might think “well, it would be illegal for CSS to reject prospective foster parents based on their religion.” But why? Under CSS’s theory of the case, if their religion says you shouldn’t “endorse” non-Christian marriages by certifying the couple as foster parents, then they can refuse to do so under the First Amendment. They could do the same for Black people if they wanted, or maybe people from Muslim countries. Where’s the limit? The lawyer for CSS was asked about this at oral argument. She changed the subject.
Thankfully, many Christian foster care agencies, including Catholic ones, happily certify same-sex married couples. This makes perfect sense. I am no fan of the foster care system, but if you believe providing foster homes is a public good within your organizational mission, then do that without needless discrimination. Bigotry does not advance the gospel.
To be fair, for a lot of Christians taking CSS’s side, the legal fight matters more than pushing back against the advancement of the rights of same-sex couples. And I’m obviously not against the religious liberty movement’s aim of protecting everyone’s freedom to worship as they choose. But we also have to be clear that what CSS fought for here, all the way to the highest court in the land, was the right to exercise idolatry — proclaiming clearly and boldly to the world that, in marriages and families, heterosexuality is more important than Jesus. In this case, those disordered priorities led to truly pointless discrimination, which harms same-sex couples and reinforces many people’s negative expectations of the Church in public life.
This was an ugly case, and, by the way, it’s not over. The Court didn’t reach the larger legal question that religious liberty advocates wanted. The narrow ruling allows Philadelphia to alter its contract a bit, deny that contract to CSS again, and restart the whole process. In the meantime, the world is watching, and it is not confused about the message CSS is sending. I hope Christian religious liberty advocates can find a different issue or plaintiff to get where they want in terms of legal doctrine. I hope they will value witness over legal expediency. But I know how radical it would be for activist lawyers to turn down a case that could achieve a desired constitutional outcome. And I know many in the movement are entirely convinced it is good and right for Christians to discriminate in this way. So I will pray instead of holding my breath.