The U.S. Supreme Court today said that it will hear a case on whether taxpayer-funded foster care agencies may discriminate against same-sex couples, thus reducing the number of homes available to children in foster care.
The case, Fulton v. City of Philadelphia, began in 2018, when the City of Philadelphia stopped referring foster children to Catholic Social Services (CSS) because the agency would not license qualified same-sex couples to be foster or adoptive parents. CSS then brought a lawsuit in federal district court, claiming the city’s anti-discrimination laws impinged on their freedom of religion.
The ACLU intervened 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 they had a First Amendment right to deny service based on religious beliefs, and asked the court for a preliminary injunction requiring the city to continue referring children to the agency while the litigation proceeded.
The U.S. District Court for the Eastern District of Pennsylvania denied that injunction, and a three-judge panel of the 3rd U.S. Circuit Court of Appeals last April ruled in support of the district court’s position. Writing for the panel, Judge Thomas Ambro said, “The City’s nondiscrimination policy is a neutral, generally applicable law, and the religious views of CSS do not entitle it to an exception from that policy…. It has failed to make a persuasive showing that the City targeted it for its religious beliefs, or is motivated by ill will against its religion, rather than sincere opposition to discrimination on the basis of sexual orientation.”
The Supreme Court in August 2018 had denied an emergency petition from CSS to intervene in the case, with Justices Clarence Thomas, Samuel A. Alito Jr., and Neil Gorsuch dissenting—but that was before President Trump’s most recent pick for the court, Brett Kavanaugh, took his seat. Now, they’re willing to give it a look. The case will likely be heard in the fall, according to the Washington Post.
The outcome of the case could have repercussions far beyond Philadelphia, minimizing the ability to successfully challenge discriminatory laws already in place. The Trump administration last November issued a new rule that allows taxpayer-funded foster care and adoption agencies, as well as other recipients of taxpayer-funded grants from the U.S. Department of Health and Human Services, to cite their religious beliefs as a reason to discriminate on the basis of sex, sexual orientation, gender identity, and religion. And in January, Tennessee became the 11th state to allow religion-based discrimination in child services.
The impact of all this is grim. As The Rev. Stan J. Sloan, CEO of Family Equality, said today in a statement:
We are already facing a shortage of prospective foster and adoptive families nationwide, at a time when there are close to half a million children in foster care…. Freedom of religion is important and is protected by the First Amendment to the Constitution. Yet freedom of religion does not allow anyone to impose their beliefs on others. Allowing taxpayer-funded child welfare agencies to turn away qualified families based on religious requirements that are unrelated to their ability to provide loving homes for children is discrimination, plain and simple, and will make the existing foster care crisis even worse.
As for the argument that child service agencies will close if they have to adhere to anti-discrimination laws even when doing so goes against their religious beliefs, we should keep in mind the counter-argument explained to me in 2017 by Emily Hecht-McGowan, then-chief policy officer at Family Equality: “The problem is lack of families, not lack of social service providers.” When providers choose to close, their cases are transferred to other agencies. But when providers turn away otherwise-qualified prospective parents, there is less assurance another parent will be available, especially within a reasonable time frame. The effect of this is to leave children without homes.
In the United States in 2020, in a country founded on the separation of church and state, that is unconscionable. May the Supreme Court find its conscience when it hears and rules on the case.