At issue in Fulton v. Philadelphia, for which the Supreme Court heard oral arguments earlier this month, is the fact that Philadelphia’s Catholic Social Services declines to consider placing foster children with gay parents, citing religious reasons, but receives financial support from the city, subjecting it to anti-discrimination laws. The Becket Fund, which defends religious liberty, has taken up the case.
Don’t be surprised, however, if a Court cast as deferential to religion rules against Catholic Social Services. Questioning by Chief Justice Roberts emphasized that, in this case, a Catholic adoption agency is acting not in its role as a religious organization but as a government contractor. In doing so, it finds itself, like many nonprofit social-services groups across the United States, increasingly dependent on government contracts. Over the past 60 years, what was once called the independent sector has become anything but.
Almost a century ago, my father was a child like one of those now involved in this case. I can say with some certainty that the Juvenile Aid Society, when it carefully reviewed which families it would support with its private, philanthropic funds, did not consider nontraditional families. A nonprofit supported and managed by wealthy German Jews who took it upon themselves to provide care for orphaned “Russian” Jews such as my father, the Society cared most about making sure that the children it helped had a room for themselves and a well-lit place to do homework. It cared as well about urging on its charges what it considered to be constructive values—including, as listed in one memo in my father’s file, “self-control, truth and honesty, good manners and the meaning of honor and confidence and trust.” Crucially, the Society relied on private funding and volunteers. Matilda Sternberger, one of its members and an heir to a Civil War uniform fortune, came regularly from tony Rittenhouse Square to visit my father’s room in an apartment above a barbershop in South Philadelphia.
The Society could be choosy about where it would place children. In the Great Depression, the financial support one might receive to take in an orphaned boy would have been widely sought. Women with names such as Loeb, Selig, and Deutsch would never have considered placing Jewish children with names such as Katz and Lazarowitz in a Gentile home.
Such discretion was based in the sort of financial independence that a group like Catholic Social Services simply doesn’t enjoy. In 2017, CSS received, according to the Philadelphia Inquirer, some $1.7 million for placing 266 children in adoptive homes. Overall, it received, according to its audited financial statement, more than $9 million of its $17 million operating budget from government contracts.
Financial dependence on government is widespread within the social-services sector. According to the Urban Institute, some 56,000 nonprofits have entered into 350,000 contracts and grant agreements with the federal government alone. Many come through the federal Administration for Children and Families, the heart of the Department of Health and Human Services, which disburses $53 billion, much of it matched by state funding. The story of the Juvenile Aid Society reminds us that such arrangements are still relatively recent. Indeed, it was not until the passage of the 1962 federal legislation creating the Bureau of Family Services that such contracting was even authorized.
If Catholic Social Services of Philadelphia wants to proceed based on its traditional idea of what constitutes a healthy, adoptive home, it should not look to the city for its financial support. Doing so brings the sort of regulation that the city applies to any service contractor. That, indeed, is what Chief Justice Roberts implied, noting the Court’s decision that found same-sex marriage to be constitutionally protected. The Philadelphia case, he said, “is a case involving free exercise rights, but they’re in tension with another set of rights, those recognized in our decision in Obergefell. And whatever you think or however you think that tension should be resolved as a matter of government regulation, shouldn’t the City get to strike the balance as it wishes when it comes to setting conditions for participating in what is, after all, its foster program?”
It would be far better for those of means who are believing Catholics to donate the $9 million on which the organization relies annually from government. Indeed, charitable donors to many causes would do well to direct their giving to the truly independent sector—independent, that is, of government.
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