Fifty-four children, probably more, think Sharonell Fulton and Toni Simms-Busch are real-life supermoms. Who can blame them? Fulton has fostered more than 40 children over two decades. Simms-Busch has fostered 14 children and adopted two of them, and many of the children she’s welcomed into her home have had special needs, learning disabilities, autism. That is, until March 2018, when the city of Philadelphia’s Department of Human Services, led by a bevy of progressive Democrats and emboldened by a discriminatory city ordinance, severed ties with Catholic Social Services, a pioneering foster agency they had previously partnered with, just because it was a faith-based organization.
Catholic Social Services will now plead its case before the Supreme Court in Sharonell Fulton et al. v. City of Philadelphia this fall. It is represented by lawyers from the Becket Fund for Religious Liberty, who are fresh off a victory at the Supreme Court on behalf of the Little Sisters of the Poor, fighting to protect religious exemptions. The free exercise clause is not the only thing at stake here: Hundreds of children in need of homes have an uncertain future, and parents such as Fulton have an ache in their hearts to provide.
Road to the Supreme Court
In March 2018, a newspaper article featuring interviews with members of Catholic Social Services and other faith-based agencies in Philadelphia explained that they would be unable to place children with same-sex couples due to their religious beliefs. Even though a same-sex couple had never approached them to adopt, the groups said if that happened, they would refer the couple to another agency. When members of the Philadelphia City Council became aware of the article, they issued a statement condemning Catholic Social Services, saying it was essentially discriminating under the guise of religious liberty. The city then launched an investigation into religious adoption and faith-based foster agencies, despite the fact that the referral system described had worked for years and met the needs of all kinds of Philadelphia couples with no complaints. When Catholic Social Services refused to reject the values that brought the organization to life in the first place, the government shut down its ability to care for any new children in the system.
This left a big hole in the city’s adoption and foster proceedings. City officials sent up an emergency smoke signal and asked other local, secular, or nonreligious adoption and foster agencies if they’d have room to help facilitate Catholic Social Services’ share of adoptions, at least 300 more children. The agency has continued to operate, but such is the void left by Catholic Social Services being prevented from placing children into new homes.
In a tragic account submitted in court via affidavit in 2018, one foster mother relayed her experience watching as the child she had fostered with special needs could not be placed back with her after a brief stay with another family, as a direct result of Philadelphia’s decision to cut ties with Catholic Social Services. For her own protection, and the child’s, she was forced to remain anonymous. Her affidavit read:
“I have learned that Doe Foster Child #1 has not been receiving his regular and needed therapy for his autism, because Doe Foster Child #1’s school called me to ask why Doe Foster Child #1 had not been attending his special classes and receiving therapy. The school wondered if Doe Foster Child #1 was sick since he had not been attending. I am worried about his physical and emotional wellbeing right now. I also understand that Doe Foster Child #1 has since been moved to another temporary respite home, and that there is no other permanent home available for Doe Foster Child #1 right now. My understanding is that under normal circumstances, Doe Foster Child #1 would have been placed with me so that I could give him the love and care he needs, and we could proceed with the adoption process. DHS has not provided me with any reason — other than its dispute with Catholic Social Services — for refusing to let me care for Doe Foster Child #1.”
If Catholic Social Services remains unable to facilitate more adoptions and is eventually shut down, this child’s fate will not be the only one up in the air. On its small property within the inner city of Philadelphia, the organization actually houses approximately 50 children who are unable to be permanently adopted due to behavioral and mental health issues. Should the Supreme Court find in favor of the City of Philadelphia, it could not only adversely affect Catholic Social Services and the other faith-based agency in Philadelphia, Bethany Christian Services, it could shutter the doors of faith-based agencies nationwide. According to the Department of Health and Human Services, there are more than 8,000 faith-based adoption and foster agencies in the United States. It would be nearly impossible to predict how many children would either be shunted back into the hands of the state or wait in limbo for homes as parents try to partner with secular adoption or foster agencies.
Fulton’s case isn’t unique
Part of the difficulty of adoption and foster care lies in its sheer scope: In Philadelphia, there are so many children that need homes, the state opted nearly 100 years ago to partner with private agencies that would help place children in safe, loving homes. Last year, there were an estimated 13,000 children in Pennsylvania’s foster system.
Adoption is a problem of magnitude, but it is not just about numbers. These are children we’re talking about. Many of them cannot find homes because they are older, have special needs, and require more resources than an average parent can give. This is where mothers such as Simms-Busch and Fulton come in. Their patience is extraordinary, and without their efforts, dozens of children would still be homeless.
Melissa Buck is another such mother. She, too, adopted five children with special needs through another Catholic agency, St. Vincent Catholic Charities in Michigan, and that organization was also nearly shut down due to similar accusations of discrimination. While there are some slight differences in the case, Buck v. Gordon is eerily similar to the one before the Supreme Court.
In Buck, Buck and St. Vincent joined Shamber Flore, a former foster child, and stood firm against the attorney general of Michigan’s attempt to shut down the foster agency because of its religious beliefs about marriage. The case is currently on hold, awaiting the Supreme Court’s decision in Fulton v. Philadelphia, but last September, a federal district court ordered the state of Michigan to continue working with St. Vincent while the case continues. The court ruled that “the State’s real goal is not to promote non-discriminatory child placements, but to stamp out St. Vincent’s religious belief and replace it with the State’s own.”
In the opinion, the federal court called out the elephant in the room: whether Catholic organizations such as St. Vincent are constitutionally entitled to their deeply held religious convictions or whether those beliefs are seen as a weapon to discriminate against gay couples. It’s a question bound to be discussed at the Supreme Court this fall, particularly by Justices Sonia Sotomayor and Elena Kagan. For their part, the federal court for the Western District of Michigan held:
“This case is not about whether same-sex couples can be great parents. They can. No one in the case contests that. To the contrary, St. Vincent has placed children for adoption with same-sex couples certified by the State. What this case is about is whether St. Vincent may continue to do this work and still profess and promote the traditional Catholic belief that marriage as ordained by God is for one man and one woman.”
Melissa Buck would like the Supreme Court to consider, in addition to the rub between whether a faith-based adoption agency’s free exercise rights and a gay couple’s desire to have a family can live and thrive side by side simultaneously, the fate of the children who have been so well taken care of because a faith-based foster agency found homeless children loving homes. And as the adoptive mother of two sets of siblings, she can attest firsthand what will happen to the children should the Supreme Court find in favor of the City of Philadelphia. Unlike agencies such as Catholic Social Services, the state is often ill-equipped to facilitate adoptions of multiple siblings, especially if they arrive at the agency at different times, as is often the case with half-siblings. Shutting down religious foster agencies makes it less likely that siblings may be able to stay together.
Should the agency be forced to sever ties with the state, Buck told me on the phone, “the community and the child welfare system would be at such a loss. It would affect the adoptions of people we know. It would affect permanency for kids waiting for homes, especially siblings hoping to stay together.” Though its adoptions are final, Buck says if her agency were to close down, it would still adversely affect her and her children. “We have relied on our agency for over a decade. We reach out to them. We lean on them. It’s not that same level of care that your friends and family can provide.”
I spoke to Nick Reaves, one of the attorneys at Becket, who underscored the importance of Buck’s case as it relates to Fulton and Simms-Busch’s case before the Supreme Court. “Like the government of Michigan in Buck, the government in Philadelphia chose to exclude Catholic Social Services because of its long-standing religious beliefs. We hope the Supreme Court will recognize and confirm what the Court in Buck already found: that faith-based foster care agencies can serve children and families in need without having to give up their sincere religious beliefs.”
There is a distinct and established through line between the children in need of homes, the fundamental basis of Christian beliefs that drives agencies such as Catholic Social Services, and the free exercise clause that should protect those agencies and allow them to operate with their deepest faith-based convictions intact, despite accusations of discrimination or bigotry. Let’s hope for the children’s sake, and the First Amendment’s, the Supreme Court recognizes just that.
Nicole Russell is a contributor to the Washington Examiner’s Beltway Confidential blog.
