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Are Same-Sex Couples Entitled to Equal Treatment as Foster Parents?

Fulton v. City of Philadelphia, argued before the Supreme Court in November 2020, is often portrayed as pitting religious freedom against equality for same-sex couples. A decision is expected by the end of June.


The City of Philadelphia hires private social service organizations, which included Catholic Social Services (CSS), to conduct investigations leading to certification of households to serve as foster parents. CSS informed the City that it wouldn’t certify same-sex couples to be foster parents because the Catholic Church doesn’t accept the legitimacy of same-sex unions. In response, the City voided a $2-million-dollar-a-year contract with CSS for its work in family certification. CSS sued, leading to the current Supreme Court case.


The American Civil Liberties Union (ACLU) opposes the CSS position, arguing that religious beliefs shouldn’t stand in the way of the government requiring equal treatment of same-sex couples in the programs it funds. According to ACLU’s president David Cole, if CSS wins its appeal, “it will open the door to providers to deny government services to women, Muslims, or any other group to which they assert a religious objection.” For example, “Catholic firefighters could refuse to respond to calls from a Planned Parenthood clinic….”


At oral argument, Justices Kavanaugh and Sotomayor asked if some compromise was possible to avert a win-lose situation pitting religious belief against equal treatment. I suggest that a practice in healthcare, which is also largely subsidized by taxpayers, can serve as a model. Except in emergencies, pharmacists, physicians, and other healthcare providers aren’t required to render services to which they have religious or moral objections, so long as their abstaining doesn’t compromise patient care. Hospitals, clinics, and pharmacies must therefore have a diverse staff with a full complement of employees willing to provide the services that any patient may need at any time.


This accommodation of religious and moral beliefs is a compromise insofar as it limits as well as frees conscience-stricken healthcare providers. Because they are still required to refer patients in a timely manner to other healthcare professionals, they are restricted to geographical areas and organizations where alternative providers are readily available. There’s no allowance for services being delayed or denied, nothing comparable to firefighters refusing to respond to a call.


The same system and strictures can apply to the certification of foster families. CSS doesn’t deny that same-sex families should be certified, only that they will not do job themselves. They are willing to refer same-sex families immediately to one of the 30 other agencies in Philadelphia’s certification system, all of whom are willing to perform this service for them. The inconvenience to same-sex families need only be making an extra phone call.


So, what is the fuss about? I think it’s about tolerance and acceptance of difference. In Masterpiece Cakeshop v. Colorado Civil Rights Commission (2018), the Supreme Court allowed a cakeshop to refuse to make a wedding cake for a couple simply because the cakeshop owner’s religious beliefs opposed same-sex marriage. The same-sex couple didn’t have any trouble getting another baker to make a wedding cake for them, but they were insulted. They felt that their lives were being denigrated; that the cakemaker failed to accept the legitimacy of their relationship; that he was insufficiently tolerant of difference.


The couple’s reaction is perfectly understandable, and I can imagine that some same-sex couples in Philadelphia feel the same way about CSS’s refusal to investigate and certify same-sex families to be foster parents. But the situation is reciprocal. The Catholic Church has a dim view of same-sex relationships, and many liberals (including me) have a dim view of the Church’s stand on this issue. Like the same-sex couples, however, CSS can claim insufficient tolerance and acceptance of its views and choices. Each side demands tolerance and acceptance without offering it to the other, because neither side recognizes its own view as intolerant. They think that the need for tolerance applies only to the other side.


If we’re to be a free and diverse country that creates one out of many (e pluribus Unum), we must recognize that tolerance is a two-way street. We must accommodate people we think are wrong so long as the accommodation creates no greater harm than hurt feelings. The law shouldn’t be used to shield people from expressions of disapproval, which is all this case amounts to once a system is in place to assure same-sex couples an unimpaired ability to be certified as foster parents.


In no context should one person’s conscience significantly impair in any way other people’s ability to exercise their rights as patients, consumers, or citizens. But when no one is really harmed, everyone should be free to follow the dictates of conscience. The result in Fulton v. City of Philadelphia could then be the kind of win-win situation that Justices Kavanaugh and Sotomayor were seeking.

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