Supreme Court Sets Up Referendum on Faith-Based Discrimination in Foster Care, Adoption

The U.S. Supreme Court. Photo: AP

The Supreme Court will hear arguments on whether faith-based child welfare providers have a constitutional right to discriminate against certain foster and adoptive parents, even if it’s done with taxpayer dollars.

Fulton v. City of Philadelphia was granted review today by the high court. Its decision in the case could have an impact on child welfare policy around the country, especially in almost a dozen states that have passed laws permitting faith-based providers to discriminate. 

“I think that what they are seeking … is to establish a constitutional right to discriminate,” said Christina Remlin, a staff attorney with Children’s Rights, a national advocacy and litigation nonprofit that has criticized faith-based protections in child welfare. 

The Philadelphia case began in March of 2018 when the city’s child welfare agency found out that Catholic Social Services (CSS), one of its contracted providers for foster care services, would not license same-sex couples to be foster parents. The Philadelphia Department of Human Services canceled its contract with CSS, which then sued the city along with four of its foster parents seeking a court-enforced renewal. 

That June, the ACLU of Pennsylvania intervened in the case on behalf of two nonprofit advocacy groups supporting children in foster care and LGBTQ rights. Since then, CSS and its counsel, the Becket Fund for Religious Liberty, have sought and been denied a temporary injunction by the federal district and circuit courts. Meanwhile, Philadelphia established an ordinance that requires any child welfare contractor to agree to a non-discrimination policy. 

Today, the Supreme Court announced that it would hear arguments in the Fulton case.

“Over the last few years, agencies have been closing their doors across the country, and all the while children are pouring into the system,” said Lori Windham, senior counsel at Becket, in a statement issued today. “We are confident that the Court will realize that the best solution is the one that has worked in Philadelphia for a century — all hands on deck for foster kids.”  

At issue is not whether faith-based groups can be inwardly selective about serving people – Arkansas organization The CALL, for example, recruits and trains a large portion of the state’s foster families. But The CALL does not take any government funding, it only refers foster parents to the state’s child welfare agency. 

In Fulton v. City of Philadelphia, the court could decree that public agencies must allow faith-based providers to follow religion in accepting clients, even if that agency had a nondiscrimination requirement. 

“Basically they’d be saying, even if a [government discrimination] policy is neutral, you’d have to let faith-based discrimination occur,” Remlin said. 

This would restrict the number of providers that would recruit same-sex couples or single people looking to foster or adopt, as well as adults who simply did not follow the religion of a provider in their area. 

But under ruling in favor of Catholic Social Services, “agencies could refuse to serve Jewish kids, or gay kids, and certainly wouldn’t have to respect their identities,” said Mary Boo, executive director of the North American Council on Adoptable Children. 

The outcome of the case could affect states that have laws protecting publicly funded faith-based providers that use religious principles in selecting who to serve, even if it’s done with public money. Such legislation began to pop up after the 2015 Supreme Court decisions that made same-sex marriage the law of the land. 

So far, 11 states — Alabama, Kansas, Michigan, Mississippi, North Dakota, Oklahoma, South Carolina, South Dakota, Virginia, Tennessee and Texas — have passed faith-based protection bills. And in late 2019, the Trump administration rolled back several Obama-era orders that curtailed discrimination by providers that take federal dollars. 

Leslie Cooper, deputy director of the ACLU’s LGBT & HIV Projects, said the state laws in Michigan and South Carolina are currently being challenged in court. 

If the high court rules in Catholic Social Services’ favor, Remlin said “it would make it very, very difficult for folks to challenge the constitutionality of those laws.”

But if the court were to say faith-based discrimination must be allowed, Cooper said, “it wouldn’t matter if that’s what states said anyway.”

The court’s decision could have implications on competing federal legislation on this issue. A Republican-backed bill would penalize federal child welfare funding for states that do not allow faith-based providers to selectively choose their clients, while legislation with the support of Democrats would eliminate federal dollars for any state that allowed discrimination. 

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John Kelly, Editor in Chief, The Chronicle of Social Change
About John Kelly, Editor in Chief, The Chronicle of Social Change 1181 Articles
John Kelly is editor-in-chief of The Chronicle of Social Change. Reach him at jkelly@chronicleofsocialchange.org.