Admittedly my title is a rhetorical question. The answer, however, is obvious.
Thursday, Ryan T. Anderson has authored: Memo to the Supreme Court: Keep the Faithful Free to Foster. Anderson is referring to Fulton v. City of Philadelphia for which oral argument was heard on Wednesday. The argument transcript is available here.
Neal Katyal represented the City. Justice Thomas actually asked a fair and pertinent question regarding whether the City’s position would be different were Catholic Social Services (CSS) not a contractor receiving taxpayer funds. Katyal’s answer was that the city would view the matter differently.
Alito, on the other hand, attempted to assert that the City had a ideological objection in contrast to contractual compliance. Alito also dwells on the idea that CSS refers gay couples to another agency which, according to Alito, means no harm is done. Katyal responded quite forcefully. But I digress.
Getting back to Mr. Anderson:
Anderson’s premise is dishonest. He is suggesting, through his title, two false constructs:
- That the absence of CSS as a foster agency does not permit the faithful to be foster parents.
- That CSS requires a waiver based upon religious beliefs.
As to issue #1, Katyal actually addresses the issue with statistics from Boston (where Catholic Charities withdrew rather than comply). The other agencies filled the gap.
Issue #2 is resolved with basic contract law. CSS is doing the work of the City and is paid with taxpayer funds.
Anderson eventually makes a factually false argument:
To best serve these children, public policy needs to maximize the number and diversity of foster agencies (including faith-based agencies). This increases recruitment efforts from diverse pools of parents and increases the number of foster families.
The number of agencies is unrelated to the number of qualified foster parents. As Neal Katyal explained in oral argument, the remaining agencies fill in the gap. In fact, CSS, through its actions, was reducing the number of available foster parents.
Anderson goes from wrong to ridiculous:
The city did this not because the Catholic agency had done anything wrong, but because the city doesn’t like Catholic beliefs about marriage. The city urged the Catholic agency to get with the times, update its policy, and effectively abandon its beliefs about marriage.
This has nothing to do with Catholic dogma which, by the way, is not shared by the majority of American Catholics. This is about complying with the requirements of a contract which include respect for the City’s nondiscrimination law.
This also has nothing to do with marriage. At least not directly. CSS could place children with gay couples without altering Church teachings. I am sure that they have placed children with non-Catholics and couples with a divorce or two in their backgrounds. In fact, placing children with a Jewish couple violates Church teachings.
Two of the plaintiffs in Fulton are prospective foster parents. Anderson notes:
The Supreme Court should protect the freedom of these women to foster, as well as the right of this agency to continue the vital work it has done for more than 200 years.
The two women could foster children through another agency. CSS does not have a “right” to do anything out of compliance with local law.
After considerable surplusage, Anderson attempts to make his significant arguments:
1. No same-sex couple had ever gone to, let alone been turned away by, Catholic Social Services to foster.
That is irrelevant. Gay spouses are well aware of the policies of Catholic agencies. Even if that were not true, the lack of discrimination does not affect nondiscrimination laws.
2. If the city can take over foster care and violate religious liberty, what’s to prevent it from taking over other areas of the public square?
Uh, the City already controls foster care. Contractors do the work of the City with taxpayer funds.
Religious liberty? According to the late Justice Scalia (Employment Division v. Smith) the First Amendment’s free exercise clause guarantees “the right to believe and profess whatever religious doctrine one desires.” Nothing abridges CSS’s free exercise.
Need I explain the logical fallacy of slippery slope arguments? The supposedly awful unintended consequences are entirely unrelated to the event that allegedly causes them. This is a form of fearmongering.
3. The race analogy does not apply here.
Many commentators try to force an analogy on same-sex marriage to interracial marriage.
“Commentators” might propose the comparison (Anderson does not cite a specific example). Having said that, all protected classes in nondiscrimination laws are equal in terms of enforcement. The consequences of discrimination based on race are not different from the consequences of discrimination based on sexual orientation.
One argument that should be controlling is that in Philadelphia, it is illegal for employers, housing providers, businesses, providers of public accommodations and City services to discriminate against anyone because of their gender identity, sex, or sexual orientation. Foster agencies are providing City services.
Anderson’s closing paragraph is preposterous, … and dishonest.
The Supreme Court should uphold the Constitution’s protection of religious freedom by allowing all to foster. Doing so will also serve children best. A win-win.
All people can foster regardless of the presence of CSS. As for claims that allowing CSS to discriminate will “serve children best” that is predicated on the false claim that nondiscrimination laws reduce the number of eligible foster parents.
If Catholic Social Services is allowed to contract with the city while discriminating, then the children assigned by the city to CSS will have fewer qualified foster parents available. That means that their potential to be placed is reduced.
Perhaps the greatest dishonesty is that Ryan T. Anderson is contending that he is arguing in the best interests of potential foster parents and children. Bullshit. Anderson is defending the Catholic faith irrespective of how doing so impacts others.
Frankly, I expect the Court to rule in favor of CSS because some of the justices perceive that they have a religious duty to do so.