Just two days after a U.S. House committee approved an amendment that would allow publicly funded foster care and adoption agencies to discriminate against LGBTQ parents and others based on the agencies’ religious or moral beliefs, a federal court issued a decision saying that Philadelphia can require foster care agencies with city contracts to follow its LGBTQ-inclusive nondiscrimination policies.
Earlier this year, Philadelphia stopped referring foster children to Catholic Social Services (CSS) because the agency will not license qualified same-sex couples to be foster or adoptive parents. CSS then brought a lawsuit in federal district court, and the ACLU filed a motion to intervene on behalf of the Support Center for Child Advocates, which provides legal representation and services to children in the foster care system, and Philadelphia Family Pride, a nonprofit organization for LGBTQ parents and prospective parents. They argued that the children and families served by the two organizations would be harmed if CSS won the lawsuit. CSS countered by arguing that the U.S. Constitution’s First Amendment protected their right to deny service based on religious beliefs, and asked the court for a preliminary injunction requiring the city to continue referring kids to them while the litigation proceeds.
The court would have none of it. U.S. District Court Judge Petrese B. Tucker wrote Friday that “CSS’s provision of services meets the definition of public accommodations and, therefore, CSS must provide its services in accordance with the [Philadelphia] Fair Practices Ordinance,” which does not allow discrimination against same-sex couples, among others.
Nor is the city religiously motivated and targeting a particular denomination in its actions, the court said—they had also stopped referring people to Bethany Christian Services after Bethany refused to work with a same-sex couple. (Bethany later changed its policy.) And the plaintiffs did not prove that the city’s Fair Practices Ordinance was intended to infringe religious rights.
DHS and the city’s enforcement of the Fair Practices Ordinance, the court concluded, “is rationally related to a number of legitimate government objectives,” including “ensuring that the pool of foster parents and resource caregivers is as diverse and broad as the children in need of foster parents and resource caregivers,” and “that individuals who pay taxes to fund government contractors are not denied access to those services.” Not only that, Tucker said, but they have an interest in avoiding lawsuits under the Equal Protection Clause and Establishment Clause of the U.S. Constitution that would likely be brought by same-sex married couples if government contractors avoided complying with the nondiscrimination provisions of the Fair Practices Ordinance.
And although the plaintiffs tried to argue that stopping referrals to them would negatively impact children in foster care, DHS Commissioner Cynthia Figueroa testified, “CSS’s intake closure “has not resulted in a rise in children placed in congregate care [i.e., group homes or similar residential facilities]” or in the DHS overnight foster care room. Other foster care providers have had their intake closed for other reasons, “and the foster system nevertheless remained stable.” Families can transfer to other agencies without irreparable harm. This is a key point, as other faith-based agencies have tried to make the same argument for continuing to serve while discriminating, as I wrote about in 2017. Additionally, despite DHS’ desire not to work with providers who discriminate, they are keeping children’s needs in mind above all, as Tucker noted, saying, “CSS has, in fact, sought out and received placements for children despite the intake closure when placements were in the best interests of the child.”
The current ruling is the first time a federal court has said that government-contracted child welfare agencies do not have a right to exclude same-sex couples or others from fostering children if they (the prospective parents) don’t fit an agency’s religious beliefs, according to the ACLU. The plaintiffs have appealed, however, and filed for another injunction pending appeal. I’m not a lawyer, but it seems they’ll have little chance of winning an injunction after this one has been slapped down. As for the appeal, we shall see.
The case is likely to be studied closely, though, as a U.S. District Court considers whether Michigan is violating nondiscrimination laws by allowing child-service agencies to discriminate against same-sex couples, LGBTQ youth in care, and others, and as the U.S. House amendment gets debated. Ten states in total now allow faith-based discrimination in adoption and foster care, meaning children may be denied access to otherwise qualified prospective parents who are LGBTQ, single, divorced, in interfaith relationships, of a different faith, or otherwise go against an agency’s religious or moral beliefs. I’d expect additional challenges to those laws as well.
As I’ve said before, here are a few things you can do to help:
- Call and e-mail your U.S. representatives—especially if they are on the Appropriations Committee—and tell them not to support the Aderholt amendment, which would limit the number of homes available to children who need them.
- Call and e-mail your state legislators if you live in Alabama, Kansas, Michigan, Mississippi, North Dakota, Oklahoma, South Carolina, South Dakota, Texas, or Virginia, which allow faith-based discrimination in foster care and adoption, and tell them to overturn those laws.
- Follow the Every Child Deserves a Family Campaign, which has been fighting such bills for some time, as I detailed here.