Catholic and Secular Understandings of Humanity Clash at the Supreme Court

The contract dispute John Roberts foresaw in 2015

Attorneys representing several petitioners including the Archdiocese of Philadelphia and the respondents including the City of Philadelphia recently argued their respective opposing positions in front of the US Supreme Court in Sharonell Fulton, et al. v City of Philadelphia, et. al. It is exactly the type of case Chief Justice John Roberts foresaw in the wake of the Obergefell decision legalizing same-sex marriage.

At issue is whether Catholic Social Services of the Archdiocese of Philadelphia can continue as a vendor for foster care placement for the city of Philadelphia. This charity-based arm of the Archdiocese places children in foster care. Representatives of the agency do not believe CSS can in good faith place them with same-sex couples.

Practical elements of the case

The City of Philadelphia argues it can no longer refer potential clients to Catholic Social Services. Not allowing the agency to place foster children with same-sex couples is beyond what the city accepts among its vendors.

Catholic Social Services responds that this is a case of religious discrimination forbidden by the first amendment. Hashim M. Mooppan, Counselor to the Solicitor General, Department of Justice, Washington, D.C.; for the United States, as amicus curiae, supporting petitioners put it this way:

The government itself requires, tolerates, and itself engages in various forms of discrimination on the basis of protected traits for the best interests of children. But then it turns around and refuses to abide by any form of discrimination with respect to sexual orientation in order to deny an accommodation for the Catholic Church.

The city, however, has concerns about being a future party to a discrimination lawsuit, according to Neal Katyal Esq. representing the city and responding to questions from Justice Stephen Breyer:

We’re worried about being — making the City itself a party to discrimination. And even then, they didn’t declare a breach. Rather, they just said the next annual contract we won’t renew because they’re telling us, after our investigation, they won’t fulfill the terms of the contract. (Ibid. p. 66)

Lower court rulings sided with the City of Philadelphia and now both parties wait for the response from justices of the Supreme Court. Their final ruling will probably come out next month.

As always when dealing with a dispute, there are positions and issues. Trying to resolve conflict on the position level will never work unless the underlying issue is addressed.

What are the positions? Whether or not the City of Philadelphia can continue to contract with Catholic Social Services if the agency refuses to place foster children with same-sex couples.

The city’s position is there cannot be an exemption to this rule even though the situation has not yet come up in the business relationship.

Catholic Social Services’ position is that it cannot be true to its constitutionally protected faith and follow the rules of the city.

The city refutes claims they are purposely targeting the Catholic Archdiocese citing the twenty-six million dollars they continue to pay in contractual services to CSS annually.

Those are your positions. What is the issue:

If you look carefully, you will see the issue is how one defines humanity.

The Catholic position is, as always, rooted in natural law which means, according to Catholic teaching, nature itself gives us input in reason on how to define our existence. According to natural law, the human race has two complementary sexes: male and female, and through the sexual intercourse of the two sexes, the procreation of children comes forth through the order of nature. Catholics teach this action is a participation in the creative work and power of God in the Father, Son and Holy Spirit by his design.

No ideology can erase from the human spirit the certainty that marriage exists solely between a man and a woman, who by mutual personal gift, proper and exclusive to themselves, tend toward the communion of their persons. In this way, they mutually perfect each other, in order to cooperate with God in the procreation and upbringing of new human lives.3

According to Catholic teaching, if we change our understanding of this natural law principle, we are not just altering a civil law — we redefine humanity, the meaning of human existence and the deeper understanding of the building blocks of human reality — specifically the family.

The city’s position is that according to the civil law there are new dynamics in place and Catholic Social Services has to work within them regardless of the deeper issues within the philosophical or even the theological framework of the Catholic Church.

So, the issue is how does the city fulfill its contractual demands in light of the Catholic understanding of the nature of the human race.

As part of the court brief, the city quoted Chief Justice John Roberts in the Obergefell Case which legalized same-sex marriage in the United States.

“[h]ard questions arise when people of faith exercise religion in ways that may be seen to conflict with the new right to same-sex marriage,” giving as an example “a religious adoption agency declin[ing] to place children with same-sex married couples.” 135 S. Ct. 2584, 2625–2626 (2015) (Roberts, C.J., dissenting). He predicted that “[t]here is little doubt” such a case “will soon be before this Court.” Id. at 2626. That prediction has now come true.4

The moral versus the philosophical

Many think the Catholics base their decision on the moral issue that homosexual activity is a sin. However, the foundation of the Catholic objection of placing children with same-sex couples is the philosophical/anthropological model drawing from natural law.

Homosexuality as a category is a relatively new term going back only about two hundred years. Previously, there was no term of homosexual just those who engaged in homosexual activity.

Many in the gay community define homosexuality as attracted to someone of the same sex whether or not there is a sexual relationship. Many in the Christian community define homosexuality as same-sex intercourse. These two understandings further confuse the issue. In fact, this also is at the base in Christian circles of the controversial practice of conversion therapy designed in theory to change someone who is same-sex attracted to be attracted to those of the opposite sex whether or not there was ever sexual activity. Although certain dioceses may recognize conversion therapy, there is no official teaching of the Catholic Church that recognizes or mandates it.

The definition of homosexuality upon which the Roman Catholic Church bases her teachings is actually from St Polycarp who specifically proscribed sexual activity between members of the same gender either in a passive or active position.

There is no prohibition in Catholic circles for two people living together of the same or even the opposite sex. The prohibition is in sexual relations outside of a sacramental marriage and/or not open to life. What is not addressed in the legal brief is the sine qua non of Catholic morality: obedience to Christ in a prayer relationship with Him.

The Catechism of the Catholic Church teaches that it is impossible to live the commandments if we are not people of prayer: “Prayer is an indispensable condition for being able to obey God’s commandments.” (CCC 2098) Therefore, prayer and a relationship with Christ are essential elements to living Catholic morality according to the teaching documents of the Catholic Church.

The Supreme Court in the case of Fulton v City of Philadelphia seeks to resolve contract disputes. The real resolution is at a deeper level than the Supreme Court can address — specifically the philosophical, anthropological issue.

The Supreme Court will rule on what serves the civil sphere but the issue cannot be truly resolved until there is a formal definition of what constitutes marriage that will satisfy all parties. That appears to be beyond the scope of any government entity to resolve at this time in the United States.

Regardless of the outcome of the case, the Catholics must be focused on doing the will of God and that may change how they interact with civil society in the years to come.

1 . SHARONELL FULTON, ET AL., ) Petitioners, ) v. ) 19–123 CITY OF PHILADELPHIA, PENNSYLVANIA,) ET AL., ) Respondents. PETITION FOR WRIT OF CERTIORARI US Supreme Court pp 56–57

2. Ibid. p.66


4 Ratzinger, Joseph Cardinal, Considerations Regarding ProposalsTo Give Legal RecognitionTo UnionsBetween Homosexual Persons Congregation for the Doctrine of the Faith, Vatican City, 2003

5. Polycarp, St. Letter to Philippians V #3